THE SPECIAL SENATE COMMITTEE ON SENATE MODERNIZATION
EVIDENCE
OTTAWA, Wednesday, February 14, 2018
The Special Senate Committee on Senate Modernization met this day at 12 p.m. for the consideration of a draft report on methods to make the Senate more effective within the current constitutional framework.
Senator Stephen Greene (Chair) in the chair.
[English]
The Chair: Welcome, ladies and gentlemen, to the Special Senate Committee on Senate Modernization. I want to remind colleagues that although we are meeting to consider a draft report, we are meeting in public — an idea I had indicated previously is a modern one — so that Canadians have better access to our deliberations and can truly understand the work we do. As I mentioned, today we are considering a draft report.
Before I begin, I would like to inform the committee that Dr. Gary Levy, who appeared before the committee during our work on the Westminster system and is even quoted in this draft report, passed away last night after a short battle with cancer. Dr. Levy may be well known to senators and staff. He was a long-time employee of the Library of Parliament, a past editor of the Canadian Parliamentary Review and was clerk to many Senate committees. If senators would like more information about him and so forth, please speak to our clerk after the meeting.
I would also like the note the absence of one of our deputy chairs, Senator Tom McInnis. As you may have heard, Senator McInnis was injured in a fall last week. We wish him well, a speedy recovery and a return to this committee as soon as possible.
In terms of how I would like to proceed today, I’m sure you’ve noticed the report is relatively short and is divided into five sections. The introduction begins on page 1; a section called “What is the Westminster System?” begins on page 2; “The ‘Canadian-style’ Westminster” begins on page 6; the fourth one is “Westminster Governments Around the World,” beginning on page 9; and the conclusion begins on page 13.
I propose to go section by section as opposed to page by page, if that’s agreeable. If colleagues have questions or comments on a specific section, please wait until we get to that section as opposed to putting all your remarks on the table at once. The clerk will start a new speaking list as we begin each section.
I want to remind senators that this report is about setting the stage for the next part of our study, which is the structure of debate. The goal of this report is to frame our future deliberations in a way that is in keeping with the principles of the Westminster styled system.
Unless there are any general comments, I would like to now proceed to the introductory section. First, I would like to open the floor to Senator Joyal, who is our deputy chair.
Senator Joyal: Thank you, Mr. Chair. I would like to extend my greetings to Senator McInnis, who has unfortunately been the victim of an accident that will keep him away from our work. I hope that he will have an opportunity to look into the proceedings of our discussions today because he has a very keen interest, as you know, being the previous chair of this committee. I know that he will certainly want to be kept informed of our progress. I can just but wish for him to come back as soon as possible so the members of this committee can benefit from his enlightenment on the substance of our deliberations. I would be remiss if I had not started with those words for Senator McInnis.
The draft report, as you say, is very short. We have had the benefit at the steering committee of going through it in terms of its first draft and improving it. I am sure there is still the possibility to add to it here and there to make sure it is reflective of what we have had as testimony and the contributions of the witnesses, especially from Mr. Gary Levy, with whom I happen to have worked for many years. I would like to extend to his family my personal condolences, having known him personally for many years.
I think the proposal that you made to go through page-by-page and leaving us the time, of course, to review quickly is a good procedure, so I suggest we go on that way.
The Chair: Can I open the floor up to people on the introductory section?
Should we move on to section 2: “What is the Westminster System?” Any comments or issues?
Senator Joyal: On line 21, page 2 — unless you are still on page 1?
The Chair: No.
Senator Joyal: Line 21 refers to Senator Day. I have in my notes that Senator Carignan is to be added.
The Chair: I think he is added.
Senator Joyal: Unless the drafter put him in later on?
The Chair: He is on line 27 or 28.
Senator Joyal: Good. At the time, it was not there in my earlier version, and I’d suggested that Senator Carignan was an important witness here. Thank you.
The Chair: So pages 3 and 4.
Senator Wells: Before we get into any detail, I wanted to say that the absence of comment from me and possibly others isn’t necessarily agreement with what’s written there. In speaking with Senator McInnis, I know he had further comments he wanted to discuss with me, which I obviously reserve the right to do. I wanted to make that comment.
Senator Massicotte: That means you may agree or disagree, and no one will ever know.
Senator Wells: You’ll know, but absence of comment doesn’t mean I agree.
Senator Lankin: You're not in a position to comment. I’m surprised.
The Chair: Are there any other comments, after Senator Wells?
Senator Frum: I would like to comment, not to try to make an edit, but it was difficult to find a reference to Senator Carignan, which I do know is here, but it’s one single reference and one single sentence. I know his presentation ran about 45 minutes, and that’s the only place where he or Senator Day are quoted. I would say that the balance of opinions here is a little bit out of whack, but like Senator Wells, I’m simply noting that. I’m not trying to edit this report at this time.
Senator McCoy: Back to your comment, I think I spoke that long too, and I only get one sentence as well.
Senator Frum: If you balance the testimony in favour of one point of view or the other, you’ll find that the balance is not equal.
The Chair: I see. So that’s your comment? Fair enough.
Is there anybody else on section 3? Okay.
We can move to section 4, or we can go more slowly than that.
Senator McCoy: There’s the introduction, then I thought we did “What is the Westminster System?” and now we’re on section 3? Do you want to label these sections by numbers in a table of contents for the ease of reading for future audiences of the ages?
The Chair: That’s a very good idea. We will do that.
Senator McCoy: It didn’t occur to me until we tripped over it ourselves.
The Chair: We’re now on section 3, “The ‘Canadian-Style’ Westminster,” beginning on page 6.
Senator Massicotte: I’m not an expert, but I think it’s in a conclusion but it starts here, whereby we’re basically saying that part of the role of the Senate — normal stuff — but it also has something in there that says we are also responsible to keep — it’s not the right word — to keep the government’s agenda or something in account. Maybe I would ask Senator Joyal if he could — and I’m not a constitutional expert, but my memory is such that, historically, the Senate did not have a role in keeping the government to account. The conclusion being is that you can do whatever you want with this institution, and I agree with whatever makes sense, so it’s very pliable. We can bring it where we think it should go, but I thought, historically, that was not part of our role. Could you help me there, Senator Joyal?
Senator Joyal: It’s certainly now a feature that characterized the existence of our parliamentary system. I can quote from the decision of the Supreme Court in the Vaid case. I don’t know if you remember this decision from 2005, but the Supreme Court had to pronounce on parliamentary privilege. Parliamentary privilege, as you know, is linked to the rights of a senator or a parliamentarian, because privileges apply equally to MPs and senators and there are no distinctions at all. It’s section 18 of the Constitution.
Senator Massicotte: I know it by heart.
Senator Joyal: I will quote it here, to be faithful to the original text:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively . . . .
So there is no distinction between the status of an MP and a senator. I think that’s a very important element to keep in mind.
In the decision of the Supreme Court case called Vaid, Justice Binnie, who was the drafter of the decision on behalf of a unanimous court — it’s quite important to retain that the decision was unanimous, the whole bench; the nine judges — and I’ll read it:
. . . in order to sustain a claim of privilege, the assembly or member —
— senators or MPs —
— seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions —
— and then they say what is their function —
— as a legislative and deliberative body, —
— we understand that —
— including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency.
In other words, the deliberative and legislative work of a senator includes the assembly or the senator’s work in holding the government to account. We do it in very diversified ways. For instance, last week when Senator Tkachuk introduced a motion to have an emergency debate on the pipeline, it was not a bill. We were not seized with a bill dealing with the environment. For instance, the new environment bill was tabled in the house last week. We were not seized of that bill. But a senator proposed a motion to have an emergency debate on a specific issue whereby the government is — I would not say “challenged” — involved in the future of one of its decisions to approve the extension of the pipeline.
So this is, in my opinion, the closest illustration whereby we keep the government to account on a decision that the government has taken. The initiative of one province is of national interest, and that’s why there was the request for a debate in the Senate. So we’re holding the government to account in a way in that decision. Even though we are not seized with legislation, we are holding the government to account.
I could give you another example. When the Legal and Constitutional Affairs Committee tabled its thick report, with 42 recommendations, entitled Delaying Justice is Denying Justice a year and a half ago, the report was challenging the government to take immediate initiative to offset the delay in the criminal justice system following the decision of the Supreme Court in the Jordan case. The Standing Senate Committee on Legal and Constitutional Affairs spent hours touring the country, hearing witnesses and producing a report whereby the Minister of Justice, the Attorney General of Canada, has to answer a specific list of recommendations. This is a way to keep the government to account. All the studies the committees do are, in one way or another, ways of keeping the government to account on specific policy issues.
I could reverse the situation. When the government decides to — I don’t like that word but I will use it — to open a conversation with Canadians on an issue, and the Senate takes upon itself to debate the issue, we’re not seized with legislation. We are in the process of expressing views in relation to an issue for which the government intends to legislate in the future. We are directly involved in the process of making a decision of the government on a policy issue.
So there are various ways for the institution to approach its responsibility, as the Supreme Court has said, including keeping the government to account. You’re right in saying that the Senate has developed those ways of being involved in the public parliamentary debate. There’s no doubt about that, and the Supreme Court has recognized it in another decision. You will think I am always working with the decisions of the Supreme Court under my arm, but the Supreme Court has done it in a unanimous decision I have here on the Senate reference in 2014. It’s very recent, and I want to quote paragraph 16 because it shows that the role of the Senate has evolved over time:
Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process.
I will stop there. Even the Supreme Court has recognized that the role of the Senate has evolved. The composition of the Senate has evolved. The Supreme Court has recognized that, and that is within the Westminster model of Parliament.
In other words, I totally subscribe to the Senate’s investigative role or its initiative in studying policy issues through the years, such as Senator Pate’s introducing a motion to review the condition of women in prisons. There is no bill on the government table in relation to this, but the Senate is a platform for the expression of minority views and minority groups who are not well treated in the other chamber. The Supreme Court has seen that as a complementary role to the House of Commons.
Through the years, there is no doubt that if you go through the first 30 years after Confederation — let’s take 1867 to 1898 — and you review the role of the Senate, well, in those days, the Senate’s role was in sync with the government’s role. The government was much less involved in the management of what I call societal issues. The government was not involved in any social services, health and social insurance, senior pensions or anything you can imagine around those areas of activity, so the Senate was in sync with the concerns of the government of the day.
But today, we have lived through the last 100 years in a society that has evolved, and the Senate has also evolved in terms of the focus it brings to specific issues of policy. It brings its contribution to the public debate, and I hope the Senate will continue to do that because it has established and maintained its relevancy with the public, to whom we are, at the end, accountable. We’re accountable to the public for what we’re doing, and I think that when we publish a study like Delaying Justice is Denying Justice, we’re serving the public. There are many people who suffer from the weight of the justice system and all those delays, but who will take it upon himself or herself to bring that to the government’s consideration?
So the Senate has an essential role in the democratic process of Canada. Not directly — we are not elected — but the end result of what we do contributes to the strengthening of democracy in Canada. The court has stated here the role that we have, now, to represent minority interests. If you look at the composition of the Senate today and what it was in 1867, there is a notion of the difference and diversity.
I was thinking about that last night. Let’s think about the presence of women in the Senate. The decision of the Judicial Committee of the British Privy Council in 1929 stated that women were persons within the confines of the Constitution and could be appointed. Look how many years it took to arrive at a presence that is fairly balanced. We are still not there yet, and the principles were there. It was totally not only legal but legitimate to expect that women would be in a fair balance in the chamber. Of course, the labour market has also changed. Women constitute 80 per cent of the labour market, so it is important that the Senate evolves at the rhythm of society and has some views expressed in the public domain that would not find their way there under other circumstances.
I don’t see any Aboriginal senators around the table, but 20 years ago Aboriginal issues were nowhere because the policy was to more or less marginalize and, in fact, assimilate them and have them disappear. Now we are in a totally reversed situation. The presence of Aboriginal senators is almost an inescapable fact, so we will have a role to play as an institution in keeping the government to account in relation to Aboriginal issues.
So you see, it’s a fluid evolution that is in parallel with the evolution of society, and sometimes lagging behind. There’s no doubt about it and I can identify sectors where I think we’re lagging behind. Sometimes we are at par or in sync with what’s going on.
But I think that, on the whole, keeping the government to account is an essential element of Parliament. We are part of Parliament. We are the two sides of the brain, if you like. There is not one side of the brain that is smaller or shorter than the other one. The two work in parallel and in a complementary way. We take some initiative to keep the government to account that the other place doesn’t take but, on the whole of it, it has an impact on the strengthening of the democratic debate.
I don’t want to spend too much time, but it seems me this is how we have to view our institution, which is evolving. It evolves now, of course, with the large number of independent senators. It’s part of the evolution. We have to adapt and strengthen the democratic debate by capitalizing on what we have done best and on what has best served the institution. I think all of us can have different views on this but I think that, on the whole, that’s what we want to achieve.
I certainly have no reserve on that concept of keeping the government to account. It’s a very wide, open concept.
Senator McCoy: Just take a deep breath and attempt to digest what Senator Joyal just said. That’s a very good primer. Thank you very much. I think it’s an excellent outline.
I would like to come back down from the heights of erudition to a minor grammatical point on page 6, if you will bear with me. On page 6, on line 16, the second last word should be “its,” not “their,” because we’re referring to each of which had “its” own, so if you wouldn’t mind checking that.
Further down on that page on line 20, I wonder if you would consider broadening the description. You were talking about how Confederation meant to recognize and protect differences. We use the word “geographic” and then the quote goes on to expand on that quite considerably. In my understanding, we weren’t just saying that Point Pelee was important and so was Cape Breton. We were saying that the cultural and linguistic differences in Lower Canada were very important, as they were among the francophones in New Brunswick. We wanted to protect linguistic and cultural differences more than geographic differences. We wanted to protect the nature and the practices of the people, not the nature of the topography.
The Chair: I agree.
Senator McCoy: Can we just say that?
Then on page 9 —
The Chair: “Geographic and cultural”?
Senator McCoy: No, I don’t think we were trying to protect geographic differences. The fact that Cape Breton has more coal —
The Chair: That’s true.
Senator McCoy: — than Manitoba wasn’t in our minds, I don’t think.
The Chair: How about if we take out “geographic” and change “difference” to “differences”?
Senator Joyal: Can I read the Supreme Court again?
The Chair: By all means.
Senator Joyal: I’m sorry again, honourable senators. I would like to draw to your attention the secession reference. The Supreme Court, as you know, referenced in 1998 something about the very point. It’s to strengthen your point, senator.
Senator McCoy: Exactly.
Senator Joyal: This is paragraph 81 for anyone who would want to consult it:
Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities.
The point that I want to put is here:
However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter.
And I insist on this:
Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation . . .
As we say in algebra, CQFD — what needs to be demonstrated. It is the very point that Senator McCoy wants to put.
Senator McCoy: I leave it to you all to craft it. I would be happy with such words as “minorities,” “linguistic and cultural minorities ” — something of that nature — without going into another quote. I really like the quote you did pull out of the same case that has just been cited. I like the quotation you used. I just think that we want to remove the word “geographical,” because that’s not what we are talking about.
The Chair: Okay.
Senator Stewart Olsen: I hear what you’re saying, but let’s not forget the original point of the Senate was geographical — regional or whatever — but please don’t begin by overwhelming us with minorities, language, culture and all of that.
Senator McCoy: Keep the word “regional” if you want to. It is better than “geographical.”
Senator Stewart Olsen: I think it’s extremely important.
Senator McCoy: I would be happy with that one word.
The Chair: “Regional.”
David Groves, Analyst, Library of Parliament: We’ll replace “geographic” with “regional.”
Senator McCoy: If there are other comments between pages 6 and 9, I will wait, but on page 9, I’m particularly focusing on line 26, the summary. I like the flow of this whole section, et cetera, et cetera. Congratulations to the drafters.
Senator Massicotte: What page are we on?
The Chair: Page 9.
Senator McCoy: This report is beginning to sing, so well done.
But now I want to get back into the slipstream of Senator Joyal’s presentation from 10 minutes ago, if you can please remember how he was talking about how the Senate must evolve over time to meet the —
Senator Stewart Olsen: Which line?
Senator McCoy: I’m just giving you some context at the moment.
— to meet the needs of Canadians.
One of the things I think we were very keen to emphasize, and Senator Joyal was a major boost to Senator Nolin, who brought his six inquiries together that actually started this committee. We were talking about the six different roles — seven if you add political — of the senator in modern Canada. My point is that I think we have done so well here. We talked about the evolution, and we keep talking about growing with time — we match what Canadians need from decade to decade, generation to generation.
But as I was reading this, the last bullet on page 9 struck me. It is on lines 25 and 26, and it ends with the legislative process. That’s where everybody thinks that’s all we do. I would like to encourage some other phrase there other than just “the legislative process.”
I think we are the second chamber. We are a complimentary body. We play an integral part in Canada’s — say that again, please, Mr. Armitage?
Blair Armitage, Clerk of the Committee: I think “parliamentary governance” is a phrase that Senator Kinsella used very often.
Senator McCoy: I think it’s more like parliamentary diplomacy. I’m thinking of our support for causes — autism, for example — that spills over eventually into the legislative. You said so earlier today. Now, I leave that point with you. I’m not interested in —
The Chair: We’ll have a look at that. Thanks.
Senator McCoy: I'd just like to flag it and broaden it. I keep saying this, and I’ll repeat myself and you’ll be tired of me saying this, but it was a strategic move to broaden out and be explicit about the multiple roles of a modern Senate and senators so that nobody with a lack of knowledge of what the Senate really is in this day and age could come in and do an evaluation that was flawed because of a lack of understanding. Have I been diplomatic enough? You all know what I’m talking about.
The Chair: We will have a look at that.
Senator Lankin: I understand the point Senator McCoy is raising. We have some in the lead-in narrative to those bullet points that refer to committee investigation. So there is reference to some of those things. But the bullet points actually follow a descriptor, which is that “key Westminster principles remain strong and central to its functioning.” This is talking about our Canadian Senate.
I would ask the question whether the other things we’re talking about — those things that you have listed, Senator McCoy — are “key Westminster principles” or key to our functioning. We might want to say, “In addition to these above principles, these are other key features of the Canadian Senate.” I don’t know whether it’s part of Westminster or not. I tend to think it isn’t a traditional part of it but --
The Chair: Senator McCoy, do you have a response to that?
Senator Stewart Olsen: Chair, just briefly, what I liked about the report was that it made the point that the Westminster system and the Canadian Westminster system are already that evolved, flexible, progressive body. I thought it explained quite well that we’re not a static body but one that is progressive and flexible. I take what you’re saying, senator, but I think it was well done in the flexibility evolution.
Senator McCoy: I would be happy to go along with Senator Lankin’s remarks —
Senator Stewart Olsen: For sure.
Senator McCoy: — or comments. It wasn’t what I was intending. I was just thinking that this tended to narrow it down too much. It brought it back into an old rut. There might be a slightly broader phrase that would achieve everything without being too restrictive. That’s all I was trying to say.
The Chair: We will look at that.
Senator McCoy: It’s a subtle point, and I leave it in the hands of our competent staff.
The Chair: They certainly are.
Senator Lankin: I would echo that and say that when we make reference to things like the committee investigations, the diplomatic role, for example, is not highlighted. That kind of description that has been developed in terms of what the role of the Senate in Canada is today — some place in a subsequent series of bullet points, we could describe today’s Canadian Senate in terms of our functions. I think that would be helpful.
Senator McCoy: It was in our first report. Exactly. Good.
Senator Lankin: Yes.
Senator Joyal: May I make a suggestion? On line 24, I would suggest removing the word “still.”
The Chair: I agree with that.
Senator Joyal: I might be a purist, but this is the sense of the overall democratic principle.
The Chair: It’s a good catch.
Senator Joyal: Well, you understand the point. We were stuck with it, you know?
The Chair: Yes.
Senator Joyal: It’s the art of the system.
On line 26, about the Senate “remains a complementary body,” I would add “which is” because the Canadian system is bicameral.
Senator Stewart Olsen: That actually makes a nice —
Senator Joyal: We have to state we are a bicameral Parliament somewhere, I mean, from the beginning. In a bicameral Parliament, when you say a “bicameral Parliament,” you say there are two chambers. The next question is what is the status of each chamber vis-à-vis one another. We don’t need to expand on that here, but we have to certainly state that we are a bicameral Parliament and we are an integral part of it. We’re not an adjunct or an appendix. We are an essential element, as I said earlier on. I used the example of a brain. Without one side, the brain doesn’t work. It is essential that be highlighted strongly.
Senator Stewart Olsen: That whole sentence then reworked around —
The Chair: Yes. We will look after that. Can we go to page 10 and further on in the section?
Senator Frum: So on this section, “Westminster Governments Around the World,” if I could draw your attention to line 29 on page 9:
The evidence collected on these other parliaments supported its findings generally: that Westminster is a less rigid and fixed system than a set of important principles that can be broadly modified and adapted in response to changing political and demographic needs.
There needs to be a sentence following “that:”. What are the set of important principles? “The important principles are,” and what the evidence shows through this very study that you cite here is that there is not a single Westminster Parliament in the world that does not define the role of the government and does not protect the rights and privileges of the official opposition. That needs to be included in this section because there is zero evidence that follows here — from the U.K. to Australia, to New Zealand and Scotland, which, of course, are not the only Westminster parliaments outside of Canada, but among them — that don’t have a government role and an official opposition role. To not mention that is bizarre.
Senator Joyal: I’m sorry for speaking too many times, but I think Senator Frum raises a very important issue. It is attached to the principle of responsible government. There is no responsible government if there is no official opposition. Because there always has to be a government in waiting to advise the king or the queen on the exercise of the sovereign powers that the monarch detain. This is an essential feature at the origin of the Westminster style of Parliament, so I certainly want to support that. We introduced that because it is an essential element and the reality of the Westminster style. We should do that.
Senator McCoy: Senator Frum is absolutely right in what she says. Of all the examples that are given, in terms of their lower chamber, in particular, it’s true. Well, of course, New Zealand doesn’t have an upper chamber and Australia’s upper chamber is elected. But our research, which extended over seven or ten different examples — my own research, me and my staff — unearthed other examples as well. We didn’t actually dip into Canadian examples of legislatures, which would include Nunavut, which was referred to earlier, and Northwest Territories.
Senator Frum: Can I respond to that?
Senator McCoy: I would be happy for you to respond in a moment. I would be quite keen to see additional examples given here.
In any event, it’s absolutely true. In all our research, there was not one legislative body, whether it was bicameral or unicameral, that was called a parliamentary system that we looked at that didn’t have one chamber that was a confidence chamber and the executive was responsible to that chamber. If it lost the confidence of the elected members in that chamber, then the government, the executive branch, fell. That is absolutely true. If that’s what Senator Frum is saying, then we are on the same page.
The Chair: I’m on the same page with that also. That is the way our system works.
Senator Frum: Let me respond. It’s not just what I’m saying; it’s what the paragraph is saying. So this is about the report. The paragraph begins, “In considering the question of the Westminster tradition . . . .” It doesn’t say upper chamber traditions. It talks about the Westminster tradition.
I understand that the Australians are elected and that Scotland doesn’t have an upper chamber. I didn’t want to get argumentative about the Nunavut example. I would argue the Nunavut example is not a Westminster legislative body. It’s outside the tradition, and that’s fine. It’s a territory and they can have their own style of government. It’s not a Westminster style.
Senator McCoy: They have a responsible government.
Senator Frum: That’s debatable. It’s a small point. The point is if the only examples we have of deviations from the system of responsible government, of a government opposition, are in Nunavut and the Northwest Territories — so two territories, and that’s it in the whole globe — I don’t know if that’s a compelling case that because of those two exceptions, that the Westminster system does not have to contain a government and an official opposition.
It’s very clear that they do. Whether it’s an upper or lower chamber, if we are trying to say what the Westminster tradition is, what are the set important principles? I accept it, yes, United Kingdom is different from Australia and different from New Zealand. Agreed. That’s interesting. But what are the important common principles?
Senator McCoy: Thank you. I have one other comment, but it’s not really on this precise topic.
Senator Lankin: I agree with what Senator Frum has said. The wording has to reflect on the fact that there are lower and upper chambers and that there is variation, but there is nothing to dispute that that is the case.
For me, I have always looked, as we have been having these conversations, not to fixate — we will get there — on what the role of the opposition is in this Senate because we have to evolve our conversation with each other about what form serves our function best. Your comment is on the form that has been traditionally in a number of Westminster parliaments, and I’m fine with making that observation.
Entirely just looking to the future, my personal view, entirely in sync with a lot of different ideological and/or value positions being people coalescing around that in groups, whether or not the accountability mechanism or role that the Senate plays is vested just in that, which some of the early discussion that I participated in, what I heard people saying was it seems to cling on to that, that we cannot have a responsible Westminster system if we don’t have a government and an opposition in the Senate, I think that statement is debatable. It may be the preferable system, but there may be other things, and there may be something in between. That’s what we have to get to the point of finally discussing with each other. What has happened for a long time is we have been hedging off that discussion and finding words we can all live with, which is a good place to start.
So I would agree with Senator Frum. The wording has to be careful so we’re not implying, therefore, that this upper chamber in the future has to have that element. But it is a feature that we see and have experienced.
The Chair: I’ll buy that.
Senator Frum: Put it on the list at the end to respond.
[Translation]
Senator Bellemare: Let’s be careful with making generalizations about all the senates in the world; I have looked at more than 80 without going into the details of each. First, I noticed that Canada is unique in the world because the vast majority of senates are elected directly or indirectly.
In France, for example, the senate is elected indirectly, because there is an electoral body; otherwise, it’s a combination of the two ways.
In the world, 17 senates are appointed. Of those 17 senates, appointed as we are by the prime minister, the governor general and so on, 15 senates are appointed for a short term of four to five years. Those appointments are made at the beginning, after the election. The prime minister appoints the senators and, in the 15 appointed senates, the suggestions come from the opposition sometimes. So there is an opposition.
However, Canada has a unique feature since there were two dominant political parties until very recently. Today, our senate has independent senators, but for a long time, with those two dominant parties, there was partisanship like in the U.S. Our senate is similar to theirs in that respect.
One criterion sets Canada apart and brings it closer to the United Kingdom: the senators are appointed for a very long time. This then changes the dynamics of the official opposition and, in the current context of the Senate of Canada, we can assume that debate can take place even without an official opposition.
So we have to be careful, because the real official opposition is usually when the senators are elected. They also form coalitions; everything is very different because there are often five or six groups, not just two groups as was the case in the past.
Senator Massicotte: Do you have a copy of your analysis?
Senator Bellemare: Yes.
Senator Massicotte: Thank you.
Senator Verner: I would like to continue along the same lines. I have not attended all the committee’s deliberations since I have been a member for a little while only. I hear discussions about the senators representing the government and those representing the opposition. Given that the Senate’s current make-up is completely different, I would like to know how we can now determine the official opposition. I’m not sure whether you have had an opportunity to talk about this with the various witnesses who have appeared before you; I wasn’t there.
It seems that the Senate groups no longer correspond to those in the House of Commons. There are five different political parties in the House of Commons and only two in the Senate. I was wondering whether this issue had been addressed before and whether it was worth including it in the report.
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The Chair: Certainly we make up our house different than the House of Commons.
I was wondering if we should revert to page 5 where there is a list of attributes that describe the legislative branch. Perhaps we can take care of this issue by tightening up some of the wording in that list of bullet points that describe what a confidence house requires, as a way of satisfying everybody around the table.
Senator McCoy: If I may respond to your question, that is all very well and good, but you begin to specify the subject again. You’re talking about the legislative branch, and we are part of the legislative branch. It’s a very strong but subtle point.
Senator Frum: Chair, may I —
Senator McCoy: We have to keep coming back to the fact that you need at least one legislative chamber that is a confidence chamber for responsible government. That is shown throughout the world.
It might help to throw in one other little tidbit of research: The term “Westminster system” wasn’t even recognized until the 1950s. I think it was some law professor from Cambridge named Jennings who started it. He did research projects and looked at all the different parliaments in British colonies to see what they did. What did they do once they got their independence? How did they interpret their heritage? He coined this term “Westminster.” In the 1970s, I gather, the Australian political scientists became very fond of the term. But the accurate description is a “parliamentary system,” which is properly contrasted with a presidential or republican system.
A more recent scholar — one of which caused me to smile — suggested we stop talking about the “Westminster system” and start talking about the “Westminster syndrome,” because a syndrome is a spectrum and allows for a large number of different but related examples. I must admit I liked that. I can find you that quote, possibly, if you wish to add that to your exegesis.
Senator Marwah: I think I will preface my remarks that saying a little knowledge is a dangerous thing. I haven’t been privy to any of these discussions in the past, but I must admit I have been thinking along the same lines as Senator Verner in saying that, with the evolving Senate we have with the independents, there will come a time to wonder, “What is the official opposition?” I’m not sure I really know the answer to that or how we establish who is the official opposition or what form it takes. Maybe it carries the form it has, but I don’t know.
To constrict ourselves into a situation that says we must have an official opposition, what form is that going to take? I’m not sure I understand how that is going to look or how it’s referenced in here.
The Chair: Yes, I think we’re struggling to find some language that satisfies the debate with regard to both the legislative and the upper house. It’s clear from the historical evidence that part and parcel of responsible government is to have an official opposition, and that resides in almost every place in the world in the legislative branch. Where there isn’t a legislative branch, it’s mixed, I would suggest. But generally there is no official opposition in the legislative branches in the upper house.
Senator Frum: This might be my journalistic background coming to the fore here. I will take us to page 2, which is essentially the introduction of this report. This report asks a question on page 2. It says:
. . . a central tenet of this Committee’s work has been that the modernization process is not intended to challenge the constitutional foundations of the Canadian Senate.
Then it says on line 12 that we know in the Constitution Act that the Senate must be “similar in principle” to that of the United Kingdom. So this report is now asking a question: What are the fundamental characteristics of the Westminster system? And what limits, if any, do they place on the process of modernizing the Senate’s procedures and operations? As the thesis of this report, that’s the question we set out to answer.
When we go to page 13, “Conclusion,” we conclude that “the testimony and evidence considered” is that “the Westminster principles do not necessarily impose a rigid or limiting approach to parliamentary design.” Well, that’s false.
The Chair: I don’t think so. That’s where the evidence takes us.
Senator Frum: That’s where this evidence takes you. I agree with you there. There is actually no evidence that there is no guiding principle of what it means to have a Westminster system. There is tons of evidence about what it is to have responsible government, and it’s simple. You don’t need 13 pages. You have a government and you have an official opposition, and the rights and privileges of each side are entrenched and protected. That’s what it is. It is not complicated.
That’s the question that’s been asked here. I didn’t ask the question. I didn’t suggest this report. This report was proposed. It asks the question: What are the fundamental characteristics of a Westminster system? What are they? And if you don’t include that the fundamental characteristic is that it is a government and an opposition, then I think it’s just an inadequate report. It’s false.
Senator Lankin: If I may, on page 5, where we were a minute ago, the first bullet point at the top states:
• the presence of a government-in-waiting, should the incumbent lose favour or confidence, which the authors call the “loyal opposition” . . . .
This is one of the important elements that distinguishes the Westminster system from other models of government. It is not correct to say it’s not referenced there. You may want more reference, and I understand that.
When you look to the constitutional reference in the arguments that you are making, that is about the Parliament of Canada, and there are two parts to the Parliament of Canada. I will say what you have said. It is not correct to say that what we have gained in terms of knowledge or information doesn’t lead us to saying there is enough flexibility for us to talk about this in the future. It doesn’t lead us to saying that in the Senate, the upper chamber, there has to be an “official opposition.”
As it is now, as I have been told, because I lapsed into the language of using “official opposition,” that it’s not in the Senate; it’s an opposition. I don’t know, when the New Democratic Party was the official opposition, what the role was in the Senate.
There are some nuances here. It’s not black and white. That’s all I want to say. I’m not negating the import that you provide to this issue of opposition and government, but it’s not black and white.
Senator Frum: Well, if it’s going to be similar in principle to that of the United Kingdom, the United Kingdom has an upper chamber and a lower chamber, and the upper chamber has a government side and an opposition side.
Senator Lankin: Is it the function or is it the form?
Senator Frum: It’s both.
Senator Lankin: Not necessarily.
Senator Frum: Why not?
Senator Lankin: Why not? You’re saying it’s black and white, and I’m making the point that all of the evidence has shown us, with the adaptations and evolution here and other places, that there is room for evolution. It is about the function, not the form. Because forms, we can learn new ways of doing things and better ways so we can improve our ways of doing things, but the function that we face is something I think we all agree on.
Senator Frum: Okay.
Senator McCoy: We’ve been around this, and I thought we were a bit closer to it, but I think that Senator Frum has put her finger on an essential point in the report. Because it hasn’t actually given all other examples of parliamentary systems and parliamentary legislative bodies.
I just wanted to say, to be absolutely accurate, one of the essential principles of a parliamentary government is that at least one legislative chamber must exist — it is a confidence chamber — and it is composed of elected members, and the executive branch is responsible to that chamber and is forced to resign if it loses the confidence of that chamber. I would agree 100 per cent one chamber only. That is the one constant that we found in all of our research on democratic parliamentary systems around the world.
Senator Joyal: I don’t want to confuse the situation more, but I will give background to it that might help the honourable senators visualize the Westminster model for the House of Lords versus us.
The House of Lords, in a way, operates on the basis of political parties. I will tell you why. It is for a very simple reason. The queen, on the advice, of course, of the Prime Minister, can appoint as many lords as are needed by the government to hold the majority in the place. There are 873 peers, I think, presently, and each government that takes over is very concerned to be sure that they will have the necessary support in the house, in the Lords, in the upper chamber. The Prime Minister has some kind of a swamping power.
When the Fathers of Confederation — I apologize for the sexist use. I should say “when the founders.” When the founders were faced with that situation, they decided to act differently, in fact to cut that power of the Prime Minister and say there will be a limited number of seats. Any new Prime Minister will not be able to say, “Well, I need 20 more senators in order to reach the majority needed to have my legislation proceed in the house.”
The British models, if I can use that word, in the Lords, operate on the basis of political parties. Because, as I say, there is no limit to the number of seats to be filled. They can go to a thousand, to a hundred, if they want to, if the Prime Minister feels he needs those seats to have his legislation passed by the upper house. And there is always, of course, because the Prime Minister wants to have the majority, a minority of parties represented, the parties that lost the election.
Without any specific provisions in any legislation — this is only, as you know, customary. There is no legislation that provides for that in Britain. It is essentially the power the Prime Minister has through convention, and it is the prerogative that dates back to the time that the sovereign had the support of the lords. It was always with the idea that the lords were the aristocracy, and the nobility in the kingdom would be there to support the king. What is left in the House of Lords is, through the role of the political parties, a way for the government to make sure that its legislation will be adopted.
We are in a different position. What happens in our tradition is that when there is a change in the government, through the attrition process, which is permanent and constant each year, in terms of a majority government, the new government faces itself in minority in the Senate. And facing himself in the minority in the Senate, the minority party of the government is the government but doesn’t have control of the house. It will take one life of a government before that government will be in a position to say they have a majority in the house. So there is always a lapse in time whereby the government in power doesn’t have control in the house because the previous government has had an opportunity, through attrition, to name additional numbers.
That is essentially, as you know, the way we operate, but it is different from the way they operate at Westminster. But the presence of political parties at Westminster, according to testimony we have heard, has been balanced by cross-benchers. Because now there is a third element besides the various political parties — I think there are four now in the House of Lords, including Labour and the Tories — and there is a group of cross-benchers. They call them that because they have no allegiance. They are independent and constitute an important group in the House of Lords. But that is besides the political parties, because the government will always want to have some of its members there to support the government legislation, but the fact that this government has succeeded one that has been defeated, the one that has been defeated is already present so there is already an opposition, in a way, in the House of Lords.
So it operates in a nuanced way vis-à-vis what we do because not only do we have a very limited number of Senate seats, but those seats are divided by regions, so the Prime Minister cannot, of course, fill more seats than what the region provides for. And the Prime Minister is also compelled to live with some appointments who are there for a long period of time, while some are there for a short period of time, so the dynamics are much different between the two chambers.
But there is no question that in the House of Lords in London, the presence of political parties is an essential element of the functioning of the place. That doesn’t mean we cannot envisage a different system for us, but I think if we are to stay within the confines of the Constitution similar in principle to that of the United Kingdom, when you come to the House of Lords, there is an adjustment that needs to be made to reflect the very nature of our federal system. I always say our Senate is a federal chamber that they don’t have in the House of Lords. The House of Lords is not a federal chamber. We are a federal chamber. There is a sea of difference between the two.
I want to go further than that. I wanted to outline that in the House of Lords there are political parties and, in my opinion, they are there to say. I’ve seen and read the various reports, especially the Wakeham report of 2000 that came out of a Royal Commission. It is rare to have a Royal Commission to study the House of Lords. Never in the Wakeham report do they recommend that the political parties be done with. They advocate a crossbench presence, no doubt about that, and that has increased through the years, but the point of that is not to have the political parties disappear at the end. In no way does the Wakeham report come to that conclusion.
The Chair: That may or may not happen here.
Senator Bellemare: My question is this:
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To have an accurate report, I think Senator Joyal has clearly explained the British system, which is more like ours in terms of appointments and duration. When I look on the Internet, the House of Commons has the notion of official opposition, but the House of Lords website has no notion of official opposition. It talks about opposition parties. I would like you to take a closer look at the rules of the House of Lords to see whether there is an official opposition when there are a number of groups or whether all the other groups are affiliated with a party and form the opposition. Based on what it says, there are the government representatives, the opposition parties in the plural and the crossbenchers sitting at the bottom of the “U” where the lords sit.
Could you check whether this notion is an integral part of our rules? In the current context, since there is a government representative, but no government caucus, I would like to have confirmation.
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Marc-André Roy, Analyst, Library of Parliament: That’s something we can look at.
Senator Massicotte: As people who spent a lot of time preparing this report, every word is important, and we’re trying to find a way so that a large consensus get the right words.
I will only make a suggestion that maybe won't work. When you ask the question about the introduction, I think it’s natural we all look for the answer. What are the principles? I think you have to get there somehow, or at least tell us.
Relative to the opposition, if I’m correct, of all the Commonwealth countries that have a Westminster system, and I understand there are some numbers, but I presume they all have an opposition.
Senator Bellemare: They all —
Senator McCoy: At least one chamber has an opposition.
Senator Massicotte: But how about the Senate?
Senator McCoy: They don’t all have upper houses.
Senator Massicotte: I think the report talks about it in principle, but let’s give the facts. In other words, I think everyone agrees what those facts are, but I think everyone would agree the conclusion is going to be that we should always condition the Senate to a form that best satisfies our obligations to the Canadian public. I think everyone would agree with that. Deal with the history. There is a fact there. You can’t dispute it, but it doesn’t arrive at an automatic conclusion. The conclusion will always be that if the Senate is to be flexible, it should respond to the needs of the current period and the conclusion shouldn’t remain the same, but it doesn’t take away from the facts that are out there, it seems to me.
Senator Stewart Olsen: I didn’t really think we were going to go here, but in our democratic institution, you can’t exist without the government and opposition. I think the word “official” is really saying “protected.” Because we have to protect that principle of it being the government who proposes and the opposition opposes or supports. That’s the basis of our democracy.
If you want to have a tonne of independent senators, that’s fine. Independent senators would be like cross-benchers and join the official opposition or the opposition at times. But you can’t assure Canadians that you will have a good, complete look at legislation. We’re talking ourselves out of a job here. If you’re walking around saying, “We’re all independent,” no one in Canada looks at government as a bunch of independents walking around doing whatever they feel like. You represent the people.
Although it sounds very nice to move away from what has been an accepted part of democracy in this country, I actually think the Senate functions with a pro-government and an official opposition, which is protected and funded. The heart of where you’re going is that you don’t want to fund an official opposition.
I know, Senator McCoy, that is not the principle behind what you propose; I understand that. But in essence, that’s where we’re going. And I don’t really care what happens in France. I don’t actually care what happens other than the fact that we have said we’re like the British. I don’t care about the others. What I care about is this country and what has evolved in our own Senate to move forward and protect the Canadian people.
This Senate has evolved into the tradition of protecting minorities, protecting languages and actually being a voice for Canadian people. We don’t do it because we’re rubber stamps for the government, and I’m not suggesting independent senators are. But before we trash what is working — and I contend that it actually does work. We do really good work here. We should understand that we have to protect an opposition by calling it an official opposition or whatever, but there has to be one in the Senate. If there is not, we might as well fold our tents and say, “Well, the House of Commons looks after all of that.”
Senator Frum: You can’t have it both ways. We started here on the foreign examples. If you’re going to argue New Zealand and Scotland don’t have an upper chamber, why are they in the report? They’re in the report because they are Westminster systems, and they have what we are talking about. There has to be consistency here. You can’t say, “They’re not useful examples. I didn’t put them in the report. Why are they here?”
The Chair: They are examples of the flexibility of Westminster systems.
Senator Frum: Fine, but then don’t then use the argument when I cite them that they don’t have an upper chamber, so it’s not relevant. I’m just saying to have consistency. Some of the examples here — we’re talking about what the Westminster system is. The topic is not what upper chambers are; the topic is the Westminster system. I’m good with that, because I know what it is. I don’t know if this report knows what it is, but I do.
When you’re doing your research on whether in the House of Lords they call it the official opposition or not, can you also check if any opposition members have been appointed by a prime minister? I think the answer will be “no.”
Senator McCoy: There were.
Senator Frum: I know you were. They might have to have them here, but I’m simply trying to say that we’re heading to the idea that you can be appointed by the sitting prime minister and still be a very effective member of the opposition. I reject that idea entirely. That’s the point of this; that’s where we are trying to go on this. I know that.
Senator McCoy: That is a good hypothesis to explore. Another good hypothesis to explore — and I think it’s very practical — is this idea, if it’s lurking out there, that we would be seeking to create groups that would not be funded like other groups or subgroups of senators.
Senator Frum: I’m sorry. I wasn’t finished. This report is on the fundamental characteristics of the Westminster system. That’s what this report is supposed to be about. Other reports — sure. This report is that.
As I say, the conclusion is completely unsatisfactory, because it says there are not any principles. That’s the first sentence of the conclusion: “The Westminster principles do not necessarily impose a rigid or limiting approach.” Really?
To bring it down to brass tacks, we’re trying to get a report written, approved and voted on, but that sentence has to go and be replaced by something like, “This report, having looked at it, has decided that the fundamental characteristics of the Westminster system are,” and then let’s name then, because that’s the question we set out to answer.
Senator Bellemare: And the conclusion from listening to witnesses and experts is that everything evolves, and the current reality is not necessarily really easy to take out very black and white principles.
Senator Frum: Gary Levy is cited on page 2, and that’s not what he had. The draft report reads:
. . . Gary Levy submitted that the most distinctive feature of the Westminster system is the concept of Her Majesty’s Loyal Opposition, and he stressed that “Parliament is, above all, a vehicle for opposition.” As such, he contended that even if the logic of the opposition applies more clearly in an elected lower house, a completely non-partisan upper house would not be in keeping with the Westminster system.
That was also part of the testimony.
Senator Bellemare: There were all sorts of —
The Chair: We took strains of testimony from everyone all over the map.
Senator Frum: So why is that not in the conclusion?
The Chair: Because we believe that the bulk of the testimony outweighed that.
Senator Frum: That’s interesting.
Senator Massicotte: I’m not on the executive, but I think the executive has to acknowledge that my solution would be to deal with the history and the facts. I don’t think you’re going to come to a conclusion on the opposition. I don’t think you should do it by the back or front door; there is no consensus on this issue.
It doesn’t matter, because the conclusion is that we should model the Senate in a way that best satisfies our obligation, as Senator Joyal said. Everyone would agree with that. What we don’t agree with is the form necessary to get there. But we will not resolve it today, and you might not resolve it next month. That’s where we are. I don’t think you’re going to get a consensus on the issue at this point in time, and you should not try to snooker one if it’s not there.
Senator McCoy: I endorse that position.
If we are finished with that line of debate, could I come to the very last sentence on page 14? I will very quickly reiterate my plea to be consistent with our first report, which laid out the six or seven roles of a modern senator, to continue to demonstrate and enlighten others who are studying us that the role of the Senate of Canada is evolving and has evolved in important ways that are of use to Canadians.
The Chair: Comments?
Senator Frum: I appreciate the sentiment there is not consensus on this report, so what happens in that case?
The Chair: I’m of the sense that we should take another crack at it and come up with another report — a revised report — and bring it back to this committee at the earliest possible time, which is February 28, the next Wednesday available.
In the meantime, the steering committee is hampered because Senator McInnis is out of action, although he is available by email and wants to participate as far as he can. In the meantime, Senator Joyal and I will meet on these issues and involve Senator McInnis to the extent possible. We would not be able to hold a steering meeting, per se, in Senator McInnis’s absence, but we would keep him advised of our progress.
The intention would be to bring another report at our next meeting, which is the Wednesday after the break week, on February 28.
Senator Massicotte: If you can’t get that timing, there is no reason we can’t meet to deal with other subjects we want to deal with.
The Chair: We haven’t had a steering meeting on these subjects yet. We don’t have an agreement yet on what those subjects are.
Senator Massicotte: We can talk about that here.
The Chair: We can certainly do that.
Senator Massicotte: What was proposed?
The Chair: We would like to get into the topic of the structure of debate. There are various models out there: There is the business council, there is the super scroll and various other ways to restructure debate. We can count about five different ways. So we would like to have some witnesses on that, but we haven’t come together on that issue yet as a group. However, Senator Joyal and I will meet this week. Senator Mockler?
Senator Mockler: For the spirit of consistency, taking into consideration the Westminster style of Parliament, on page 13, line 30 — also from listening to comments made earlier — “minority and regional voices.” So, when I look at page 14, line 5, it says “and as a space for minorities to be heard.” I would include “for minorities and regions to be heard and for opposition to rally” if we want to be consistent with regions and minorities rather than demographics. Thank you.
The Chair: We will make that change.
Senator Stewart Olsen: Don’t change it from “the voice of the regions,” though. Leave that one.
The Chair: We will.
Senator Stewart Olsen: Okay. Thank you.
The Chair: All right. Anybody have any more comments before I bring the meeting to a close? Great. Thank you.
(The committee adjourned.)