Proceedings of the Special Committee on
Issue No. 19 - Evidence - November 21, 2018
OTTAWA, Wednesday, November 21, 2018
The Special Senate Committee on Senate Modernization met this day at 12:05 p.m. to consider methods to make the Senate more effective within the current constitutional framework; and, in camera, for the consideration of a draft report.
Senator Stephen Greene (Chair) in the chair.
The Chair: Welcome to the Special Senate Committee on Senate Modernization. I’d like to welcome two new senators to our committee — Senators Brazeau and Ravalia.
Today we are continuing our review of the Rules of the Senate, the Parliament of Canada Act and other acts and policies that govern the operations of the Senate as they relate to the equal treatment of Senate groups.
Colleagues will remember that during the first phase of the committee’s work, we focused our attention on the equal treatment of senators as individuals and their ability to access debate and resources. However, work still needs to be done with regard to the equal treatment of recognized parties and parliamentary groups in the Senate. For example, under the Parliament of Canada Act, the government has a duty to consult with only recognized parties and not recognized parliamentary groups in the Senate, for instance, before appointing the Senate Ethics Officer.
Another example found in the Rules of the Senate is that when a standing vote is requested, “The Speaker shall ask the Government and Opposition Whips if there is an agreement on the length of time the bells shall ring.” There is no mention, as you can see, of the whip or facilitator of any other group in the Senate.
These are just two small examples of what the committee is examining.
To assist us in our examination, we have invited representatives from all recognized parties and groups in the Senate. To date we have heard from Senators Harder and Woo, and today we will hear from Senator Day.
We have not had any response with regard to a representative of the Conservative Caucus appearing.
Also our analysts have prepared a chart with the testimony heard to date, which was distributed a couple of weeks ago to members, and we have received a briefing note from the Law Clerk’s Office.
Following Senator Day’s testimony, we will proceed in camera to give our analysts instructions on a draft record.
Allow me now to welcome our witness, the Honourable Joseph A. Day, senator and Leader of the Independent Senate Liberals. We all know him well, but let me burnish his reputation a little more. He was born and raised in New Brunswick. He is a graduate of the Royal Military College in Kingston as well as Queen’s University and Osgoode Hall Law School. He was appointed to the Senate in 2001 representing New Brunswick. He has been a long-time Deputy Chair and then Chair of the National Finance Committee. He was elected Leader of the Independent Senate Liberal Caucus on June 15, 2016, which led to his invitation to appear here today.
With that, I turn it over to Senator Day.
Hon. Joseph A. Day, Senate Liberal Leader: Thank you very much, chair.
Thank you, honourable senators, for inviting me to speak today.
The chair is quite correct in that I was invited as chair of the Independent Liberals in the Senate.
This is my second appearance before this committee. I appeared in that capacity previously on November 30, 2016, almost two years ago. I began at that time by stressing that although I was here as Leader of the Independent Liberal Caucus, I was speaking solely on my own behalf. I was expressing personal views because there were a great many views and opinions among the members of my caucus about Senate modernization. We have had an ongoing discussion, which I think is healthy. But that same caution applies equally today. Although I am here in that capacity, my presentation and the views I express are my own and shouldn’t be attributed to all the other members of my Independent Liberal caucus.
At today’s meeting I have been asked to reflect on whether, “relevant statutes, procedural rules and administrative rules and policies of the Senate adequately reflect the new realities of the Senate.”
There is also the question I was asked to consider about the current structure of debate in the Senate Chamber. Does it continue to meet the needs — and these are your words — “of the evolving Senate.” I’ll have some comment in relation to that, and, in fact those words.
I’d like to begin, however, by briefly reviewing some of what I said when I was here previously. There are some around the table today who are new to the committee. You have just mentioned two new members. It’s important to establish a context around what we are trying to do with this term “modernization” in the Senate. Where are we trying to get to? Where are we starting from?
During the course of my previous appearance, I described how we had been told by Senator Harder that he wanted the Senate to change so it could, in his words “be closer to the non-partisan and complementary body that the framers had envisaged and that the Supreme Court had endorsed.”
I took issue with that characterization at that time and I still do. As I explained two years ago, I absolutely agree that the Senate was designed to be less partisan in order to better withstand short-term political pressures. It should take the longer point of view, but there is not some original non-partisan Senate for us to turn to or for us to take inspiration from. Non-partisan is different than less partisan.
You’ll be interested in this; I certainly was. Five senators were in Sir John A. Macdonald’s first cabinet of 14 ministers. I want to pause here for a moment so we can reflect on this fact. Today there is not a single cabinet minister from the Senate and there has not been since 2013. But in 1867, more than a third of the cabinet sat in the Senate Chamber. And consider that Sir John A. Macdonald, a Conservative, in order to get Canada under way after 1867, appointed 25 Liberals to the original 72-member Senate so that there would be a formal opposition in the Senate Chamber.
In those early days, prime ministers actually governed from the Senate as well. Canada’s third prime minister was Senator John Abbott. Our fifth prime minister was Senator Mackenzie Bowell, so in three of those early years, the Prime Ministers of Canada were not in the House of Commons; they were seated in the Senate and governed as prime minister while they were sitting as senators.
Although we like to think of our Speaker as non-partisan, that also is not the historic reality. In fact, the Speaker of the Senate is today appointed by the prime minister. Senate Speakers have always been partisan appointments. In 1880, Senator David Macpherson was sworn in as the Senate’s eighth Speaker on the same day that he was sworn in to cabinet as a full minister for the country. So in those early days, we had numerous senators in cabinet, our Speaker sitting in cabinet and prime ministers governing from the Senate.
The simple truth is that the Senate was created as a powerful legislative chamber and was designed to operate on a partisan basis. This is how it was structured, and that is where our evolution begins. We have certainly evolved from there, and it’s important for us to have a base.
However, what is genuinely interesting, colleagues, is that although it was a partisan institution from the very beginning, the distinction between government and non-government was largely muted. For example, over the years, the Senate’s original 26-page rule book did grow from more complicated and detailed changes, but it didn’t grow very rapidly. It was not until the revisions of 1991 that any priority was given to government legislation on the Order Paper — before that, everything was just dealt with as it came along — or that any special privileges were given to the government leader. Until 1991, all legislation, government and non-government, received equal treatment and all members enjoyed identical rights and privileges in the chamber.
Though partisan consideration has clearly played an important role over the last 150 years, there was a general consensus on how the Senate should function, even when important government bills were occasionally defeated or more often, as today, were amended. In my opinion, we should return to that consensus-based approach. We seem to be moving in the direction of micromanaging every possible activity that is happening and might happen in an ever-expanding rule book that we are expected to be aware of and follow, and we are doing so as we profess that we want all members of the Senate to operate more independently and with fewer restrictions on their ability to represent their regions and advance their public interest issues.
However, I do recognize that as we evolve, the laws governing our procedures need to evolve. Apart from the Constitution itself, there are two bodies of law that govern our work. There are the statutory provisions, which can change only with the cooperation of the House of Commons, and there are our own internal rules and procedures for which we alone have responsibility. But even changes in our own rules can raise complex issues, as I think most of us know and appreciate.
For example, during his appearance here on April 25 of this year, Senator Woo raised interesting questions about ex-officio committee members and how they were being treated in the rules. Historically the Leader of the Government, and the Leader of the Opposition had ex-officio status on all committees, except on Conflict of Interest and on joint committees. That is our rule; it’s rule 12-3(3).
They had and continue to have full voting rights on these committees. Traditionally, there was an understanding that if an ex-officio member intended to exercise his or her right to vote on a particular committee, he or she would give advance notice to his or her counterpart, who would then decide whether to attend and vote in the opposite way in order to restore the balance, or not attend and let the ex-officio change the balance somewhat on that committee.
But in today’s Senate, there is a serious problem with ex-officio status. The government leader represents only three senators but has ex-officio status on all committees. Senator Woo and I represent many more colleagues — and Senator Woo in particular — but we have not had ex-officio status under the rules.
On November 7, 2017, the Senate adopted a house order that extended ex-officio status to Senator Woo and to me for the balance of the session. The leaders of all four of the Senate groupings now have ex-officio status. The four of us can attend all committee meetings to participate and vote as if we were full members. But as a practical matter, some committees only have seven or nine members, and to have all four of us showing up at the meeting as ex officios and exercising our right to vote could be very disruptive and could change the balance significantly in those committees. No longer could one vote be easily balanced off by another ex-officio vote.
So the four of us — Senators Harder, Smith, Woo and I — got together and talked about this. We all agreed with one another that we would not exercise any right to vote as ex-officio members of committees; we wouldn’t vote at all. That way, the existing balance in committees could be maintained while all leaders and groupings were treated equally.
We developed a consensus on how to approach the problem, and it has worked well. But I want to acknowledge that in order for all four of us to be treated equally and for all four of us have to ex-officio status in this instance, Senators Harder and Smith gave up something they had in the rules. Again, I think that’s important for us to acknowledge. They gave up their existing right to vote as ex-officio members on committees. That concession by my two colleagues demonstrated that there was a genuine willingness by everyone to make the Senate and its new dynamic work. I applaud them for getting together to work out a way to deal with the problem that had developed.
During Senator Woo’s appearance before this committee, Senator Frum raised the possibility of up to 11 different groups being recognized in the Senator. She wondered whether they would all have ex-officio status. It was a good question. Senator Woo responded that all recognized groups could be provided the same privileges, by his words, either “levelling up” or “levelling down.” It’s an interesting concept that I’ll develop a little bit to make sure we understand it. You either give that special status to everyone or you get rid of the special status altogether, levelling up or levelling down. He said he was more inclined to get rid of ex-officio status than appointing ex officios for absolutely every caucus that may be in the Senate in the future.
In this case, in order to achieve equality and to ensure that all groups are treated the same, Senator Woo advocates levelling down and taking away the ex-officio privilege or removing existing rights from others. Perhaps, in this case, that is the right thing to do, because the alternative of five or ten ex officios all voting at a committee meeting is difficult to imagine. But that is not for me to decide and maybe some sort of voting formula could be devised to resolve that issue. First, we have to recognize the issue, and then we can work on solutions.
In any event, even if levelling down is a preferable approach in this instance, because of what could otherwise happen in committees, it does not mean that levelling down should be the answer or approach every time we try to achieve equality or fairness. This particular committee needs to look at how we can achieve that equality and fairness in many different instances, as the chair has already pointed out.
The removal of existing rights is not normally a good place to start with anything, in my view. It is preferable to add rights. That is how civil rights were expanded and voting rights expanded in democracies throughout the world — by adding rights for all and not removing rights from those who already had them.
This leads me to what I really want to focus on in my appearance here today now that we have that background, namely, the statutory changes that are necessary for recognized groups in the Senate to have the rights identical to those of recognized parties, which already have those rights statutorily.
As Senator Woo correctly explained before this committee:
. . . at the root of the unequal treatment of parliamentary groups vis-à-vis the government and the opposition is the lack of due recognition given to those groups in the Parliament of Canada Act. As it stands, the act only recognizes the presence of a government body and an opposition in the Senate, with attendant recognition for the leadership teams of those two groups and no more. A complete revision of the rules and procedures to take into account the new realities of the Senate will have to include amendments to the Parliament of Canada Act and not just the Rules of the Senate.
I’m in total agreement with Senator Woo in this statement. The fact of the matter is that the Parliament of Canada Act is not the only statute that Parliament will need to amend to bring about the necessary changes. But starting with the Parliament of Canada Act, it expressly recognizes certain positions, beginning with the prime minister. It then lists positions that are identical in both our chambers. You are aware of them, but I can very quickly list them: Deputy Leader of the Government; Leader of the Opposition; Deputy Leader of the Opposition; Government Whip; Opposition Whip; Deputy Government Whip; Deputy Opposition Whip; Chair of Government Caucus; and Chair of Opposition Caucus.
Up to this point, there is a symmetry between the two chambers. The occupants of each of these recognized positions receive an additional allowance, a higher amount for the members of the House of Commons than in the Senate, but nonetheless the positions are recognized. The difference between the House of Commons receiving a higher amount for the same position than the Senate is similar to the role of a senator being valued at $25,000 less than the role of a member of the House of Commons, and that’s something we have been living with for some time now.
The act also provides additional allowances in the House of Commons for government and opposition house leaders and deputy house leaders. These positions do not exist in the Senate.
However, where the symmetry really falls apart is that in the House of Commons all these positions are recognized not only for the government and opposition, but also for a party that has a recognized membership of 12 or more persons. Twelve members create a recognized party in the House of Commons. The remuneration for the various positions apply to every party in the House of Commons so long as they are recognized, and they are recognized if they have 3.5 per cent of the total membership in the House of Commons. The Parliament of Canada Act says that that party is recognized and the work of its leadership team is appreciated and recognized.
In contrast, in the Senate we have a group that has approximately half the occupants of the chamber as members — the ISG — but that group and its leadership are not recognized in this scheme of remuneration for the extra work that’s involved. How is that fair? How is that equal? How is it fair to recognize only the government and opposition in the Senate but to recognize other groupings in our sister chamber, the House of Commons?
This inequality was brought to the government’s attention in 2001, when the Senate amended its rules to recognize parties that have at least five members in the chamber. At that time our Rules Committee recommended that the government be asked to propose amendments to the Parliament of Canada Act to reflect the decision of the Senate of Canada. This recommendation from 2001 was never acted upon, but this is not the only statutory change that needs to be made and hasn’t been made.
As Senator Woo has described, the Parliament of Canada Act allows the leaders of the government and the opposition to make changes to their members on the Internal Economy Committee during intersessional periods when the Senate isn’t sitting, but that power is not granted to the other recognized groups and parties in the Senate. And it could easily be changed by changing the legislation that relates thereto — the Parliament of Canada Act.
Then there are statutes that govern the appointment of public officers, such as the Privacy Commissioner and the Auditor General. Those statutes normally provide that the individual is appointed after consultation with the leader of every recognized party in the Senate. So once again, “recognized party” in the Senate excludes recognized groups in the Senate because of our definitions. Once again, there is no legal requirement for consultation with other groups other than the recognized parties in the Senate. This needs to be changed.
But how do we make these necessary changes to existing statutes? First, since there are monetary consequences associated with the changes to the Parliament of Canada Act in relation to remuneration of those various office-holders, a bill would need to be introduced in the House of Commons by a minister, with a Royal Recommendation. Under our Constitution, we cannot begin that process. We cannot start the process ourselves here in the Senate.
Second, there are questions about what kind of changes we make to all these statutes in order to ensure that all groups and all parties are treated equally. It has been suggested that the reference to the “Leader of the Government” and “Leader of the Opposition” should be removed and replaced with a generic term, such as “leader” or “facilitator” of a recognized party or a recognized group in the Senate; and that the list of house officers for the Senate — which I have just read, and we talked about the symmetry — be deleted and replaced by a generic reference to the leadership team of each recognized party or recognized group. This appears to me to be an example of what Senator Woo was talking about when he was before you about levelling down — taking something away to try to create equality.
Currently, our colleague Senator Smith is the Leader of the Opposition in the Senate. That is how he is referred to in various statutes. Is it necessary to strip him of that designation in order to achieve equality for all? Couldn’t one just as easily grant to the other leaders the same rights he now enjoys as the recognized Leader of the Opposition in the Senate?
This was in fact the approach taken by our law clerk. Reference was made to the work that the Law Clerk and Parliamentary Counsel has done when this committee asked her to look at what amendments to various acts of Parliament would be necessary for recognized parliamentary groups to have the same statutory rights as recognized parties. It’s an excellent briefing note, colleagues. It is dated May 15, 2018. Our law clerk described exactly how the necessary changes could be made to ensure equality and fairness, and none of them involved the concept of taking away and levelling down, of removing existing rights or designations currently found in our statutes.
For example, the reference to Leader of the Opposition would be supplemented by saying, “and the leader of every other caucus or of every recognized group in the Senate.” This wording is, in fact, already used in the Parliament of Canada Act in the new provisions dealing with the appointment of the Parliamentary Budget Officer. The Parliamentary Budget Officer was a much more recent creation. For your reference, paragraph 79.1(1)(a) of the Parliament of Canada Act sets out the consultations that are required before the formal appointment of the Parliamentary Budget Officer.
In my view, this is the model we should be following. It is wording that doesn’t take away the “Leader of the Opposition” but gives the other leaders similar rights where appropriate. We should, using Senator Woo’s terminology, be levelling up and not levelling down.
In fact, on June 1 of this year, more than five months ago, I wrote to Senator Harder suggesting that the government prepare a draft bill using the law clerk’s briefing note as a template. I also included in my correspondence to Senator Harder an exchange of letters by my predecessor, Senator Cowan, with Dominic LeBlanc, the then Government House Leader in the House of Commons.
In December 2015, three years ago, Mr. LeBlanc wrote to Senator Cowan saying: “Should any changes be required to the Parliament of Canada Act, I would be pleased to work with you as the Minister responsible for the Act.” He described how the act provided for offices of the Leader of the Government in the Senate and the Leader of the Opposition in the Senate, and noted that “a change to those offices or the creation of new offices would likely give rise to the need for a Royal Recommendation.” He’s quite right, but he was using parliamentary terminology: “would likely give rise.” In his letter, Mr. LeBlanc wrote that he “would be pleased . . . to help facilitate legislative changes that you identify.”
On January 14, 2016, Senator Cowan wrote back and identified those changes. He referred to the 2001 recommendations of the Rules Committee that I referred to earlier when Senator Austin was chair.
Minister LeBlanc never did reply to Senator Cowan, and Senator Harder has not responded to my letter of June 1, 2018, where I recommended that we move on with this.
So, although governments, including this government, have known for many years what needs to be done in the interests of fairness and equality, nothing has been done. There is still no draft bill for us to look at.
A suggestion has also been made by Senators Greene and Woo that the members of the government team in the Senate should receive their additional remuneration authority from the Salaries Act, another statute, and not the Parliament of Canada Act. Currently, only ministers, including the Leader of the Government in the Senate, if a minister, and lieutenant governors of each of the provinces are under the Salaries Act.
To now ask Senators Bellemare and Mitchell to be added to this exclusive list after removing them from the Parliament of Canada Act would, in my opinion, be an unusual request and an unnecessary one. I’m not clear about the problem we would be trying to solve by doing this through the Salaries Act. I do not see how moving Senators Bellemare and Mitchell to the Salaries Act would help bring about equality between the different groups and parties in the Senate, in particular for those different groups and parties that don’t receive the remuneration that Senators Bellemare and Mitchell are receiving now as members of a group of three.
Colleagues, I want to make a short comment about the other issue I was requested to address today, namely, the current structure of debate in the Senate. Currently, every senator has the right to speak at any time on any item before the Senate. It’s one the greatest features of our chamber, in my view, that all senators are equal in that regard and enjoy the same rights and privileges to engage in debate as they personally see fit.
Any restriction or limitation of that individual right in the interests of promoting independence would be a perversion of that fundamental freedom, in my view, and should not be explored. Personally, I do not see any pressing reason to make significant changes to how we structure debate in our chamber, and I stress “significant” changes.
Undoubtedly, the government is at times frustrated by the pace of the sober second thought that we see in our chamber, and the government would prefer a more manageable chamber where government legislation is moved through more rapidly. The governments of Prime Ministers Jean Chrétien, Paul Martin and Stephen Harper were at times equally frustrated, I can assure you. I was here. However, they all learned how to successfully advance their legislative agenda in our chamber through negotiation, the application of our existing rules and by reaching consensus on matters. I have no reason to believe the current government is any less capable of achieving those results.
I would like to conclude my remarks by spending a few minutes reflecting on what was described in your original question as “the new realities in the Senate.” In my view, we should be evaluating our procedures and rules not on the so-called new realities of the Senate; we should be judging our rules and procedures against the job we are responsible to perform. Form follows function.
What is our function, then? What is our job as senators? In my opinion, the best and most concise description of the Senate’s function and role was given in January of 2014. You’ll recall that we were going through a debate as to whether the Senate should continue to exist. Justin Trudeau was not the Prime Minister at that time; he was the leader of the Liberals. But he said, “If the Senate serves a purpose at all, it is to act as a check on the extraordinary power of the prime minister and his office, especially in a majority government.”
That’s pretty clear, colleagues, but it does not mean that the Senate should automatically be opposing everything coming out of the House of Commons. That would be equally wrong. From my perspective, the Senate can act as the needed check on the executive branch of government that now-Prime Minister Trudeau was talking about by playing what is known as — and it’s used in government terms quite regularly — a “challenge function” role.
In 2014, the government published A Guide for Preparing Treasury Board Submissions. As you know, Treasury Board is the central agency that approves all government spending. The guide describes how Treasury Board analysts would:
Provide a challenge function to ensure that the submission has been thoroughly analyzed in light of considerations such as authorities, priorities, affordability, effectiveness, program delivery, protection of public funds, performance measurement, program integrity, costs and funding, risks . . . .
That’s the test that Treasury Board is applying. They call it a challenge function approach when a government department wants to spend public money.
The challenge function, with these kinds of questions and other questions that we can and will develop as we go along and that Senator Bellemare has raised in the motion she has put before us in the chamber, is how we should approach our work, individually and collectively. We may wish to examine language issues, such as bilingualism, to ensure they are properly protected. We could include gender equality. Those are some of the tests for the challenge function where we could do a very good job.
We should be evaluating our existing rules and procedures against our ability to perform our role. We should not be evaluating them against some particular configuration of senators in the chamber. That makeup of the Senate is constantly in flux. The makeup that exists today won’t be the makeup that exists in three or four years. That depends on the government in power and on the evolution of senators who are summoned to the Senate.
As governments change, so does the composition of the Senate Chamber. That will always be the case, and I think that’s a healthy and desirable situation. But what should not change, colleagues, is our ability, both individually and collectively, to faithfully carry out our role and to fulfill our purpose as described by the then Leader of the Liberal Party and now Prime Minister of Canada. In my view, any restrictions on the individual rights senators now enjoy in the chamber would imperil our ability to perform that role.
The Chair: Thank you very much. That was one of the very best presentations we’ve had around this table. It was clear, comprehensive and cohesive. I thank you very much for your hard work in putting our thoughts together.
Senator Day: Mr. Chairman, you were complimenting the staff that we’re able to keep with our small group thanks to your understanding and the understanding of all the members of the recognized parties and groups within the Senate.
The Chair: You’re very generous, I’m sure.
Would you be open to questions?
Senator Day: Certainly.
The Chair: Are there questions from our steering committee, perhaps?
Senator Joyal: I have suggestions and comments to make, but I would prefer to defer first to Senator McInnis.
Senator McInnis: Thank you, Senator Joyal.
And thank you, Senator Day, for your wonderful presentation — well thought out and well delivered.
In the past you’ve talked in favour of there being an opposition in the Senate. I would like to hear your comments about this: Next year there will be an election. I don’t want your comments on who will win — and I know they would be totally unbiased — but let us say that the Conservative Party forms the government. Who would be the opposition? Part 2 of the question is that at some point in the future the government will change and the Conservatives will be out. Where will they go? Will there be an opposition? It hasn’t been exactly enshrined in legislation. It has been accepted by part 1 of the report that we put in place a year or so ago.
Let me ask you this: Who will be the opposition if the government changes, and then when it changes again, where will the opposition go?
Senator Day: I remember getting instructions when I was a candidate for a political party at one time not to speculate on things that might happen in the future.
I will go so far as to say that our rules of procedure say that the official opposition, I understand, shall be formed by the next largest recognized party in the Senate. Until we change the rules, the next recognized party, if the Conservatives should form the government, would be the Liberals. And we’ll look forward to being the official opposition.
Senator McInnis: That’s very interesting because you’re absolutely correct. That’s exactly who it would be and no other alternative to that; correct?
Senator Day: Under the current rules. But that’s just another one of those rules that we’ve got to look at. We have 50 per cent in a recognized group, but the wording doesn’t let that recognized group be considered for official opposition.
Senator McInnis: The Liberal Party in the Senate, you’re a group of independents now.
Senator Day: Independent Liberals. We’re getting into an area of speculation, but if there is a new government and new prime minister, we don’t know what the new government will decide to do.
I can tell you that it’s easier to look back. In the past, I’ve seen that Mr. Chrétien, and Mr. Trudeau before him, saw that the opposition was getting too weak to be able to perform their intended function and made appointments that most in his particular party would have said were people of another political persuasion, but he felt they should have enough strength to perform their function. So it’s not unheard of that a prime minister will make appointments of people of various political interests.
Senator McInnis: But you believe it’s important to have an opposition?
Senator Day: I think it’s very important for our role in the Senate to have somebody to present the legislation and say, “This is what it’s all about and this is what we hope to achieve,” and another group of people, including the critic, to present the other side. The critic isn’t always going to vote against the legislation, but the critic’s role is to point out alternatives, other possible ramifications and, as we often refer to now, unforeseen consequences. That’s the analysis that has to take place. It does in the chamber for second and third reading, and it does in committee. As mentioned by the chairman here, I chaired the Finance Committee for quite a few years and I always took that position. Even though I might have been chairing when my particular political party had presented their legislation, I felt I had a greater role for Canada and for the Senate to point out some of the flaws, some of the things that could be improved, and that’s the role of the opposition. It’s important.
Senator Maltais: Of course, I’m a little like Senator Joyal. We’re looking at a very experienced person, if I may say so. You said many things, Senator Day. I won’t go over the content, but you have an excellent brief and it’s very well presented. Your research is very specific. I have a few very quick points to raise, which you can clarify.
At one point, you mentioned the leader of the opposition, who’s called the “leader,” and the Independent Senators Group, who have what’s called a “facilitator.” Based on your understanding, can you explain the difference between the two? I want to know whether we’re on the same page.
Senator Day: Another group decided that it didn’t like the term “leader” or “chef.” The group preferred the term “facilitator.” In my opinion, it’s the same thing.
Senator Maltais: Correct me if I’m wrong, and I’ll gladly accept your correction, but I gather that a leader is the person in charge of the group, the person who leads the troops. Does the facilitator have the same power over the troops?
Senator Day: According to our rules, it’s the same thing.
Senator Maltais: It’s the same thing. Why use the term “government facilitator” when it’s a group of independent senators who aren’t affiliated with the government? You’re affiliated with the government. You’re the leader of the Liberal senators. The government facilitator isn’t affiliated with any group. What’s the corresponding authority?
Senator Day: I think that the title of facilitator of the independent senators is the name that the independent senators have chosen for their leader. Senator Harder is known as the Government Representative in the Senate. He’s not a leader, but he’s paid as if he were a leader.
Senator Maltais: I have no issue with Senator Harder’s case. He was announced as the government facilitator in the Senate. When the Independent Senators Group was appointed — and the group now consists of about 50 senators — Senator Woo said that he was the facilitator. Does he have the same authority with regard to the government as Senator Harder?
Senator Day: Your question is twofold. We must understand the rules and procedures of the independent senators. The group makes its own rules. I’m not a member of this group, so I don’t know. I gather that they have rules to explain what it means to be a facilitator. However, we have our rules, like the Senate. It’s another leadership. In this leadership, I gather that the facilitator position means the same thing as the leader position.
Senator Maltais: In terms of the legislative matter of changing the way the Senate runs, you said that the Parliament of Canada Act must be amended and that this bill must come from Parliament and not the Senate. Therefore, a government minister must introduce a bill to make the amendments that the Senate will recommend, I imagine. This was supposed to be done two years ago, but there has been no further action. Is the government’s intention to introduce a bill to amend the Parliament of Canada Act on the agenda?
Senator Day: It has now been almost 10 years since we asked for this to be done. I thought that the bill was supposed to start in the other place. That’s the issue. I thought that if I talked to Senator Harder and explained the issue, maybe he could do something. I think that, like us, he understands what must be done. Last year, he talked about conducting a study, sending a memo to the committees, and so on. That’s not necessary. It’s simple and straightforward. We received a bill containing 800 pages and a number of amendments to other acts. I think the best thing would be for the Government Representative in the Senate to launch the bill in the other place. But so far, nothing has been done.
Senator Maltais: So until that’s done, the Senate must run according to the known rules.
Senator Day: Yes. That’s the way it is.
Senator Maltais: With goodwill.
Senator Day: Senator Woo and his team work without money and remuneration and Senator Harder, Senator Bellemare and Senator Mitchell are well paid for a team of three. It’s not equal. I regret that this will continue. However, the Senate must continue, and our work must continue. The same thing applies to us and Senator Woo. A senator’s responsibility outweighs remuneration when we play the role of the opposition.
Senator Maltais: Thank you, Senator Day.
Senator Joyal: I would like to underline your comments to the effect that then Minister LeBlanc, who was the house leader when he appeared in front of our Senate Rules Committee, as you properly quoted him, was totally open to the changes being brought to the Parliament of Canada Act. You quoted him verbatim. I remember very well that part of his statement when he participated in that exchange of views with the attending senators on the Rules Committee.
It seems to me that we are not at a dead end as much as you describe. The government doesn’t seem to have moved on the amendments to the Parliament of Canada Act to give way to the new reality of the Senate, protecting the position that exists now, as government leader and government opposition leader, in sync with the essential characteristics of our Westminster model.
But there is nothing to prevent us, as a chamber, from introducing legislation that would contain the amendments to the Parliament of Canada Act that we contemplate would be a true reflection of the reality of the Senate as it is lived today. As you properly said, there might be some amendments that would need a Royal Recommendation that only a minister of a Crown can provide, but that doesn’t prevent the tabling nor the debate of the bill. In fact, it’s only at third reading that the bill cannot be called on a vote if there is no Royal Recommendation in relation to the section of the bill that pertains to the spending of money.
If we want to really move, the approach would be to table the amendments that we think properly reflect the reality, start a debate at second reading, refer the bill to this committee or any other committee identified as being the proper forum for its study, report it to the house and engage in third reading debate. That would finally bring the government to a decision.
I don’t see ourselves waiting for the government. I think it’s not the proper approach that we should take considering that, as you quoted in your own statement, all those letters contain, in fact, the substance that we need to introduce in the Parliament of Canada Act to reflect the present reality.
Instead of saying the government is not reacting — and I would not say crybaby — I think we should be up front and introduce amendments to the Parliament of Canada Act that we deem are the proper reflection of our needs, debate it and bring it to the last step, which is the final vote on third reading. We’ll see what government will do.
I’m always more up front than passive in relation to the government. The government moves when they feel they have an electoral interest to move or when public pressure is so strong behind their back that they are made to do something. But as an institution, we are the master of our own house and we should take the initiative. So I have a qualification on your comments.
As a postscript, if we discuss our report further on, I hope this is one of the major recommendations. We can draft it. There is enough intelligence around this table with the help of the law clerk and the report we have from May of this year, which is recent. We have all the instruments needed to introduce a bill amending the Parliament of Canada Act.
So I don’t feel that we are at a dead end. On the contrary, we have the instruments to move forward, and we should be moving forward in the context of what you have suggested, to protect what we already have and what we feel is essential, like the Leader of the Opposition. We need somebody to stand up and challenge the government on a daily basis. This is a parliamentary responsibility. As much as I, as an individual senator, might offer my views on a bill, I’m awaiting the views expressed by colleagues to make up my mind. But there is an institution in the Senate that has the daily responsibility to challenge the government, and it is the opposition. There is a structural responsibility within the institution. That doesn’t prevent us individually from having views, pro or con, or adjustments or amendments and so forth. At least we know there is a strong debate because there is a strong opposition. As you stated yourself, previous prime ministers added to the opposition when they considered that it was not in a position to perform its duty.
We have everything we need, Mr. Chair, to move forward with a proposed bill. As much as I am a member of this committee and a deputy chair, along with Senator McInnis, I think that we should be moving forward. We need those amendments to reflect the true reality of the presence of the ISG. They are entitled to have the same status in terms of capacity that we have as a group.
I think we should do it. There is nothing that prevents us. There is no law anywhere in Canada that says we should not do it. If we bring it to third reading, believe me, the government will be faced with a decision that they will have to make and honour their word.
Let’s do it. That’s my sincere conviction. I don’t feel I am under-equipped to participate in that debate. I think we have all the arguments needed to debate and express and explain our views to the Canadian public so that they understand what we are looking for and why we are looking for it. To me, that is a very clear way ahead of us.
I have some nuance, maybe because you thought that the government, by not having an answer to the letters you quoted, that everything has been dropped, that nothing has happened and that we should stay there, but I think we should move forward. That’s my humble opinion in relation to the statement you made this afternoon.
Senator Day: Thank you, senator. I went to some lengths to point out what had been done and what has not been done to raise a flag. It’s not just that we are being ignored. There is a reason that fits into somebody’s plan as to why this hasn’t been acted on. This is over 10 years old, and it has been raised at least four times. Senator Austin was very clear. That report, and you were sitting on the committee —
Senator Joyal: I remember the committee in those years.
Senator Day: — came to the Senate. It said what had to be done. The Senate then sent that report to the government.
It’s going to be a struggle, but I would be very pleased if this committee was able to endorse the importance of reaching equality and the importance of having this dealt with.
Within the Senate we have the irritant of a small group and a huge group, and one is being paid to administer and the other is not. It’s very unfair and has to change. In addition, we know that the House of Commons has already done it for themselves.
I put all of that down because I want you to know that this is not new and it’s not something that I just thought up yesterday. This has been going on for a long time and must be rectified if the Senate is to continue to evolve the way we all want to see it evolve.
Senator Joyal: On the same point, I think there is a way for the government to do it very easily. It is the budget implementation bills. Look at Bill C-86, that has been chopped up and sent to various standing committees. The government can come forward with amendments to the Parliament of Canada Act in that very exercise. Put it in the budget implementation bill next spring. That could be done easily. The government could not say, “Well, if we introduce an act standing alone to amend the Parliament of Canada Act, it will take the time of the House of Commons.” They can do it because it involves salaries. It could very easily be included in the budget implementation bill. That’s the easiest way to do it. We know government machinery and how it works. That’s why I think we should take the initiative, put it on the table and bring the government to introduce it in the next budget implementation bill, and that would be it.
Just more of the same that I was saying, how easy it is. When there is a will, there is a way. I think in that context we have the will, so let’s make sure we find a way.
The Chair: Very good. I know that we all have the will.
Can we find the way? Does anyone else wish to speak? If not, I’d like to move in camera.
Senator Brazeau: I have a question of clarification. I have a document to table with this committee. Would you prefer I do it in camera, or can I do it now?
The Chair: Good question. Let’s do it in camera.
(The committee continued in camera.)