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Proceedings of the Special Committee
on Senate Modernization

Issue No. 8 - Evidence - December 7, 2016


OTTAWA, Wednesday, December 7, 2016

The Special Senate Committee on Senate Modernization, to which was referred Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate), met this day at 12:01 p.m. to give consideration to the bill.

Senator Tom McInnis (Chair) in the chair.

[English]

The Chair: Honourable senators, this meeting of the Special Senate Committee on Senate Modernization is in public.

The Senate has referred to this committee Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate). This is a public bill proposed by one of our colleagues, the Honourable Terry Mercer, who appears before us today.

While this bill has a similar general objective in nature to one of the recommendations this committee made in its first report, the mechanism in getting there is very different. I'm sure my colleagues on the committee share with me my eager anticipation of the explanation Senator Mercer has for this approach and his vision for its implementation.

Senator Mercer, please proceed with your opening remarks, and then senators will have questions, I'm sure.

Hon. Terry M. Mercer, sponsor of the bill: Thank you, Senator McInnis and colleagues, for having me. I thank the committee for welcoming me here today to talk about Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).

Let me begin by congratulating the committee on its deliberations thus far. Your recommendations will spur debate on how we can further improve the Senate and how the Senate operates so that we can do a better job as senators for all Canadians. While I may not agree wholeheartedly with all or even some of the recommendations, I do look forward to debate on those proposals. I will hold my comments on most of them for now except for one, of course. This specific proposal concerns the speakership of the Senate and selecting up to five senators as nominees for consideration by the Prime Minister to recommend to the Governor General for appointment. I will get back to that later.

I'd like to review what my bill does, offering some commentary on why we should be considering this. I apologize in advance if this is repetitive for some. I hope to stick to the 15 minutes provided to me.

I have the utmost respect for the role of the Speaker. In my tenure in the Senate, I have served with five different Speakers: Senator Dan Hays, Senator Noël Kinsella, Senator Pierre Claude Nolin, Senator Leo Housakos and, of course, the current Speaker, the Honourable George Furey. All of them have served with Senate with dignity, in good times and in bad. The Speaker is our counsellor, our keeper of decorum and our adviser in times of difficulty, and all of our Speakers have been just that.

This is not the first time a bill like this has come before the Senate. In March 2003, a former colleague, Senator Oliver, another Bluenoser, introduced a bill to do the very same thing I'm suggesting. This is actually the fifth reincarnation of this bill.

Current practice is that the Speaker is appointed by the Governor General, on the advice of the Prime Minister. To be clear, the appointment by the Governor General is part of the Constitution; specifically, section 34 of the Constitution Act, 1867, but the Prime Minister's role is a constitutional convention, so it is not codified in law. At the start of each session, the Committee of Selection is appointed to nominate a senator to preside as Speaker pro tempore, which is the de facto Deputy Speaker.

Honourable senators, this bill would amend the Constitution Act, 1867 to provide for the election of the Speaker and Deputy Speaker of the Senate. Further, it amends the Constitution to provide for a vote similar to that in the House of Commons and provides that the senator presiding cannot vote except in the event of a tie.

It also amends the Parliament of Canada Act to allow for the absence of the Speaker and/or the Deputy Speaker. How does it do this? Well, this is where it gets controversial for some senators. We must amend the Constitution. I'm not afraid of saying that, nor am I afraid of trying to do it. I believe that falls within the scope of the powers of the Parliament of Canada alone as it relates exclusively to the executive government of Canada or the Senate and the House of Commons. I refer to section 44 of Part V of the Constitution Act, 1982.

I really should stop there because, in my opinion, that's what gives this bill the authority to elect a Speaker. But, of course, I will continue.

We can interpret that section as giving us the power we need to amend section 34 of the Constitution Act, 1867 which currently states:

The Governor General may from Time to Time, by Instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his Stead.

Bill S-213 replaces that section with the following:

34.(1) The Senate, on its first assembling at the opening of the first session of a Parliament, shall proceed with all practicable speed to elect, by secret ballot, one of its members to be Speaker and another to be Deputy Speaker.

(2) Where a vacancy occurs in the office of a Speaker or Deputy Speaker by death, resignation or otherwise, the Senate shall proceed with all practical speed to elect another of its members to be Speaker or Deputy Speaker, as the case may be.

So the Speaker pro tempore would be replaced by a Deputy Speaker, and both the Speaker and Deputy Speaker would be elected by us, the senators.

The bill also changes section 36 of the Constitution Act, 1867, which states:

Questions arising in the Senate shall be decided by a Majority of Voices, and the Speaker shall in all Cases have a Vote, and when the Voices are equal the Decision shall be deemed to be in the Negative.

This bill, the bill I've introduced, would change that to ensure that the senator presiding shall not have a vote, except in the event of a tie the presiding officer should be able to cast a vote. I believe this change further enhances the independent nature of the position of Speaker.

The bill also amends the Parliament of Canada Act to ensure the chair is never empty. The Speaker must choose a Deputy Speaker to replace him or her in the event the Deputy Speaker is unavailable. The Speaker may choose any other senator to act as a temporary Deputy Speaker. In the event the Deputy Speaker is in the chair and must leave, the Deputy Speaker may choose a senator to replace him or her as a temporary Deputy Speaker. This is very similar to what happens now, but this would be codified in law.

So, honourable senators, that is what Bill S-213 does. Some questions this committee needs to consider include our selection process for the Speaker compared to other jurisdictions around the world. Can we bring about the change proposed in my bill? And, frankly, should we do it at all?

We also need to examine how we would go about putting this process in place at some point. As I said in my speech on the bill in the Senate, the research I have indicates that in 267 parliamentary chambers in all 191 countries where national legislatures exist, only the bicameral legislatures in Canada, Antigua and Barbuda and Bahrain appoint their presiding officers. That's it. That's the company we're keeping. The countries that elect their presiding officers in their chambers include Australia, France, Germany, Italy, Japan, Mexico and the Russian Federation, among many others.

In fact, Professor Meg Russell, Director of the Constitution Unit, Department of Political Science at University College London, reminded the committee that the Lord Speaker is elected, again in a secret ballot. So even Westminster elects its Speaker.

We have the constitutional powers to do this because of section 44. Amending the Constitution this way does not require the 7/50 rule or unanimous consent of the provinces. The Constitution permits the Parliament of Canada to change how it chooses a Speaker of the Senate, and I believe it should exercise that right.

So did the late Senator Beaudoin, a respected constitutional expert, law professor, dean and author. At one time, he sat in front of me in my first few years in the Senate. He is on the record as saying, "In my opinion, Parliament may amend section 31 of the Constitution Act, 1867 on the basis of section 44 of the Constitution Act, 1982.''

Honourable senators, in my review of this committee's hearings, I'd like to make note of some comments made by senators and witnesses that I found interesting. I do note that the committee was mandated to consider methods to make the Senate more efficient within the current constitutional framework. Thus, your recommendations have provided a list of senators for consideration by the Prime Minister that does not change the Constitution like this bill does.

Senator Greene and Senator Massicotte noted that the results of the questionnaires senators completed on Senate reform showed overwhelming support for electing our Speaker. Senator Joyal also indicated that there could be a way around the selection instead of changing the Constitution, where the Senate could select some candidates, not only one, and recommend those choices for consideration. That appears to be the recommendation you've made. While I may not agree with this mechanism reported by the committee, this does show that there is a desire among senators to elect a Speaker through one mechanism or another.

The problem I have with this proposed recommendation of the committee is that the Prime Minister is not beholden to such a system. He or she can still suggest whomever they want to the Governor General for appointment as Speaker of the Senate. This idea does not guarantee the senators' choice, but this bill does. We have, in fact, seen Prime Ministers generally waiver on the results of Senate elections — in Alberta, for example — even though it was the will of that province to have those individuals appointed to the Senate. That is a wholly different debate, indeed, one which would involve major constitutional change and which I will not further comment on other than that several prime ministers have ignored the results of those elections in Alberta. However, it does show that such ideas and recommendations are no guarantee they will be put into practice.

As referenced by Senator Eggleton, the composition of the Senate is moving toward a wholly independent body, as witnessed by the latest rounds of Senate appointments. That brings up a very fundamental difference between when Senator Oliver introduced his bill and my version. I strongly believe greater independence should also allow us to control how our Speaker is chosen.

Paul Thomas, Professor Emeritus at the University of Manitoba, also said something interesting:

My main argument is that the Senate must change, and the direction of that change involves transforming itself from a house of political parties into a house of review. At the centre of this transformation is an implicit political bargain. In other words, Senate modernization is primarily a political process.

I agree. It takes political will to change. Do we have that will, honourable senators?

He went on to say:

Consistent with the principles that senators should control the affairs of the institution, the Speaker should be elected by secret ballot.

Errol Mendes, Professor in the Faculty of Law of common law at the University of Ottawa, said:

It is interesting that the present government thinks that it doesn't need an amendment to the Parliament of Canada Act to move the title of Leader of the Government in the Senate to Representative of the Government. If there were consensus in the Senate to propose that you elect the Speaker, given the fact that they are already willing to forgo any formal amendment process to the act, perhaps they would even say "go ahead.'' You should try it and see what happens.

Senator Peter Harder, the Government Representative in the Senate, also addressed the selection of the Speaker:

I think that the Speaker ought to be specifically mandated to reflect the independence and equality of senators and to, in various ways, chair or lead our self-administration in that regard. That probably means we need to go to the notion of an elected Speaker so that whoever she or he is has the legitimacy to act in this fashion on behalf of the institution.

He went on to defer that opinion because of the time required for discussion on constitutional change, but I think the sentiment is there for the election of the Speaker, and it is certainly reflective of what senators are thinking.

Honourable senators, I ask you, "Why not take the time?'' We are always busy with a lot of legislation, motions, inquiries and more. Why not take the time to study this? Why not take the time to reflect on these proposals, to be bold and implement real change?

If the committee agrees that the bill should go forward for further debate, then the Senate will decide.

That brings up one last concern I wish to address: royal consent. During debate on Senator Oliver's bill, Senator Murray was concerned:

. . . the Queen or the Governor General's consent needs to be obtained before a bill that affects the prerogative of the Queen or the Governor General is presented in Parliament.

This was also reiterated by Senator Cools. I was determined that it did by way of the Speaker's ruling. As one of the objectives of this bill is the same as Senator Oliver's, Senator Hays' ruling remains:

This would effectively extinguish the authority of the Governor General to appoint the Speaker. Such an action clearly affects the prerogative power exercised by the Governor General. Accordingly, it seems to me appropriate that Royal Consent be obtained for this bill.

He went on to say that it would not prevent debate until such time as it was required, which would be before proceeding with the adoption at third reading.

Again, let's allow the full complement of senators to decide on the merits of this bill, and then Royal Consent could be sought before the bill is passed at third reading and sent to the other place. I ask that we let this process go forward. If the will of the Senate is to say, "We want to elect our Speaker,'' then let's just do that. We have the time. We just need the fortitude to try.

Thank you, honourable senators. I look forward to your questions and the discussion.

The Chair: Thank you, Senator Mercer. We have quite a list here.

Senator Joyal: Welcome, Senator Mercer. I would like to say outright that I totally support Recommendation No. 6 in the report of committee to the chamber, whereby we recommend a process of selection which, in my opinion, is the step that we can constitutionally take at this stage to have a say in the selection of the Speaker. So I want to underline that I totally support the objective for senators to have direct involvement in the selection of the Speaker. That's the position I hold, and I want to put it on the table before I make my comments and put my question to you.

The first comment is in relation to your last point, the one that was raised by former Senator Lowell Murray, which is the need to get Royal Consent before the bill proceeds at third reading. That Royal Consent, as you stated quite appropriately, and as the Speaker's ruling said, is needed because we are changing the powers of the Crown. As you know, section 34 is quite clear. It states:

The Governor General may from Time to Time —

— the following words are the most important —

— by Instrument under the Great Seal of Canada —

"Instrument under the Great Seal of Canada'' means a decision of the Crown.

— appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his Stead.

We are dealing here with the power of the Crown. To have a vote to finalize the adoption of your bill, we would need Royal Consent at third reading, at the latest, before the vote is called. That's the very-well-established rule of procedure.

The problem I have with this first hurdle, if I can use that word, is that when Minister LeBlanc appeared at the meeting of this committee on February 24, 2016, the question was put to him by Senator Massicotte on what would be the stance of the government to proceed to change the appointment process provided in 34. I want to read into the record the position that Minister LeBlanc gave as an answer, because Royal Consent can only be provided by a Privy Councillor who is an active minister of the Crown. I am a Privy Councillor; I cannot give consent. I have to be an active Privy Councillor. It is only a member of the cabinet that can signify the consent of the Crown.

I will read the answer of Minister LeBlanc to show the position of the government in relation to the bill. This bill cannot proceed at third reading if the government does not approve it:

I know there is a Senate public bill on the appointment of the Speaker of the Senate. We received a formal constitutional opinion from the Department of Justice indicating that changing the appointment process for the Speaker of the Senate infringes on the Constitution. For the time being, then, I do not have the authority or ability to say that we could consider that change, through a potential amendment to the Parliament of Canada Act.

As things stand, according to the formal opinion we received, the Governor General appoints the Speaker of the Senate. Is that ideal? Is it a modern practice? Probably not, but we were told that it has to be that way right now because of the Constitution. There would have to be a discussion to determine whether there was a way to approach the issue differently.

In other words, the government says we're caught within the Constitution. Maybe there's a way around it; hence, the recommendation that we have, Recommendation No. 6.

That's the first hurdle. We can debate it. You are totally right. We can study it. We can debate the bill at third reading. But when the vote will be called at third reading, the Speaker cannot call the vote as long as he doesn't have a Royal Consent signified by a minister of the Crown. That is very well established. That is the first hurdle. Do you want to comment on this before I go to the next question?

Senator Mercer: Senator Joyal, I've acknowledged in my comments exactly what you've said. We can get to the point where we're ready for a third reading vote, but we need to make a reference to someone in the cabinet to give that Royal Consent.

I don't counsel the current government at all. As you know, I'm no longer a member of their caucus, so I'm not there to give them counsel. However, I would suggest that in the current atmosphere, this government would be hard- pressed to say no because of the fact that they have pushed for reform and independence. The large number of recent appointments indicates that.

I would also suggest that while I appreciate the fact that you've been very creative in coming up with the recommendation that's in your report, allowing for the recommendation of five names to the Prime Minister, as I've mentioned in my opening statement, that's not worth the paper it's written on.

Let's put the situation down the road. Let's change the political scene here for a moment. Let's suggest in 10 years' time the Senate recommends a very controversial senator to be the Speaker of the Senate. The Prime Minister of the day, he or she would say, "I don't like that person; I want Senator Mercer to take the chair.'' I'll be gone by then.

An Hon. Senator: On division.

Senator Mercer: That was where the controversial part came in. He or she could ignore everything we have said collectively. All 105 of us could agree that Senator Joyal should be the Speaker, but if the Prime Minister doesn't want Senator Joyal as the Speaker, then Senator Joyal will not be the Speaker.

We have the opportunity of saying, "Prime Minister, here is who we've chosen.'' That is an important thing for us. If we're going to continue to talk about reforming this place, then we need to reform this place. We need to take charge. We can't sit back and wait for someone else to say, "Oh, by the way, Senate, we've done something over here and now you can select your Speaker.'' We need to force their hand.

There's an opportunity to say, "Okay, how serious are you about Senate reform? Here's an issue that is important to 105 of us. We've said out of the 105 of us we want to select our own Speaker.'' Who will win that election? I have no idea. I can only assure you that I will not be a candidate.

Senator Joyal, while I respect the recommendation that was made by this committee, it has no guarantee of coming up with the choice that the 105 of us would want.

Senator Joyal: We are trying to approach the issue in the context of the constitutional framework, and the constitutional framework is one that is imposed on us by the law of the land. As much as I would prefer to elect a Speaker in the way you suggested, there are constraints, and those constraints, as you know, are in the Constitution at sections 34 and 41.

The government might allege that the Parliament of Canada — the House of Commons and the Senate — doesn't have the capacity to change the power of the Governor General under section 34 because it goes beyond the power given in section 44.

Section 44 is very short and reads:

Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

When you read it, you have the impression that it's very broad. I will read it again:

. . . Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

Your reasoning is simple: The Speaker is an officer of the Crown that has status within the Senate only, so it is the prerogative of the Senate to change the way the Speaker is appointed. That's your contention. The problem is that the person who holds the power to appoint the Speaker is the Governor General.

Section 41 has very clear wording about the power of the Governor General. Section 41 says that an amendment to the Constitution of Canada may be made in relation to the office of the Queen, the office of the Governor General and the office the Lieutenant Governor of a province only with the consent of the legislative assembly of each province and the Senate and the House of Commons.

In other words, it's a unanimity rule. If you want to change the office of the Governor General, and hence the question and your interpretation, what is the office of the Governor General? That's the $1 million question.

All the major legal constitutional experts have contended that by "Office of the Governor General,'' we have to conclude that it is essentially a link. I will refer to the last decision of the Superior Court of Quebec, in February 2016, less than a year ago, when it concluded that "office'' means amendments involving the powers, status and constitutional role of the officer. I repeat: Powers, status and constitutional role.

There's no doubt that the Governor General has a role to play in the appointment of the Speaker of the Senate. It is part of his office. In other words, it is part of his power, because he acts on behalf of the Crown. When he appoints a Speaker on the recommendation of the Prime Minister, he appoints under the instrument of the Great Seal.

Let me finish; I will conclude shortly.

The office of the Governor General includes its power to appoint the Speaker. If we want to change the power of his office, it requires an amendment of the Constitution under section 41.

What I conclude is that the government will never signify Royal Consent that we go to third reading — that is, that we vote finally on your bill — because it would essentially be an infringement on the office of the Governor General, and that has to be covered by section 41. That is, it needs the consent not only of the federal Parliament, the Senate and the House of Commons, but also of the 10 provinces.

We are stuck with the situation as it is now constitutionally. Politically, it is another debate, and that's why this committee recommended that we consult, ourselves, and make proposals to the Prime Minister of at least three names so that the Prime Minister could select among those three the person he thinks is most appropriate to exercise the function under the present constitutional framework.

That's why we're constrained in our capacity to manoeuvre within the changes of the system of appointment to have a say in the selection of the person who will be asked to fill the job of Speaker of the Senate.

Senator Mercer: Senator Joyal, I will not disagree with you because you state facts, but the fact still is that we have the ability to get to that point where we're about to go to third reading and go get the consent. Or we can sit back and do as we're told, as we've done for so many years, and just wait for someone down the hall to come and say, "Now, senators, you can elect your own Speaker because we will give you the consent.'' We should go seek the consent.

Senator Joyal, you're one of the most well-respected members of this chamber. You're also one of the most well- respected members of the bar, and you have appeared many, many times before the Supreme Court. However, you know that you only get there if you ask to be there. We can only get this if we ask, not if we sit here and wait for them to grant us an audience.

The other issue that I think is worthwhile to mention, of course, is that we continue to talk about this place as designed and built on the Westminster system. Let's look at the Westminster system, and let's look at the Lords, to whom we are so many times compared to. The Lords themselves elect their Speaker.

Senator Joyal: They don't have a written constitution.

Senator Mercer: They don't have a written constitution. I understand that and respect that. However, this is an opportunity for this place to evolve, and I'm not suggesting that we will be that revolutionary. I'm suggesting we get to the point where we are ready to vote on this bill on third reading, and then we go ask for the consent. But we don't go cap in hand. If we are going to be the new modern Senate that everybody wants, you don't go cap in hand and say, "Please, Prime Minister, can you allow us to do this?'' I think we go to the Prime Minister and say, "This is what we want to do. Sign on the dotted line and we're out of here.''

The Chair: Senator Joyal, I will put you down for second round. It was a great opening.

Senator Joyal: Thank you.

Senator McCoy: Senator Mercer, I truly like your style and I have no questions for you at all.

Senator Mercer: Thank you very much. I'm going to mark that down as a one.

Senator McIntyre: Thank you, Senator Mercer, for your presentation. In the house, the Speaker holds powers and duties, and I note that your bill contains no provisions to grant the Speaker powers and duties with respect to the administration of the Senate similar to the powers held by the Speaker of the House of Commons. Your bill proposes that the Speaker's voting rights be limited to a tie-breaking vote, and obviously this proposal would have the effect of limiting the Speaker's participatory rights in chamber proceedings.

My question is this: Did you consider the possibility of granting the Speaker additional powers and duties?

Senator Mercer: No, I didn't, for the very reason that I think that's a separate discussion that we need to have amongst ourselves, and probably through one or more of our very good committees. I didn't want to take it upon myself to design the rules and the procedures for the Speaker him or herself. I think we need to have that discussion as well, but I think that's a separate one from that of the selection of the Speaker.

Senator Eggleton: I support the idea of electing our own Speaker. As you point out, they do it in the House of Lords. Our companion body down the hall here also does it. I spent a lot of years there, and it was a process that I thought went fine and was quite supportable in a democratic way, so I don't see why it can't be done in our institution. Meanwhile, I do support the recommendation that comes from this committee as an interim measure, because if there is a constitutional amendment, one never knows how long those things are going to take.

I don't see why we can't proceed with a section 44 federal government-only kind of provision. I realize the Governor General's appointment process is affected here, which could take it into, as Senator Joyal says, a section 41 type of amendment, which is a unanimous kind of thing. The other one deals with the 7/50 formula, neither of which are suitable or desirable at all in this particular context.

I can't imagine that either the Governor General, his office or the government are going to get very upset about this kind of an amendment. The Governor General not having to make an appointment of a senator on the recommendation of the Prime Minister to the office of the Speaker — I can't see that's a big issue, so I don't think we should get bogged down in that possible legality.

I would think moving this on would be a good idea. I guess, from what the previous Speakers have ruled, that a pause before third reading would be necessary to get the Royal Consent, but I realize that maybe any government wasn't willing before to do that before, but now this government is changing the whole nature of this place and recognizes that, in fact, we need some new ways of operating. That's why this committee exists: to bring about some changes and to adapt to the new reality. If they are leaving it up to us to work out our new reality, then I don't know why they can't leave it up to us to select our own Speaker as well.

I think we should proceed with this. I think we should continue to proceed with the interim measure as well, but I think as a long-term measure, this one makes sense and we should proceed with it. Don't you agree? That's my question.

Senator Mercer: I knew there would be a question. It would seem to me, senator, that the interim measure is a good one, but I think many of us would agree that my measure is a better solution. Why would we go with the interim measure when we have in front of us a solution? Let's go with the solution. If the solution doesn't work — if they come back and we're denied — then we always have the interim solution as recommended by this committee in your good work. That is always there. I still think it's problematic, but I'm hoping that we won't get there because they will accept my recommendation.

Senator Lankin: I have two questions. Thank you for your work on this, senator. First, what does it mean that we should proceed with this? Is this a bill that we're asking this committee to examine, call witnesses in regard to and to have discussion about? What does it mean to proceed at this point in time?

Senator Mercer: I leave that to the chair and the committee to decide what it wants to do. If you want to examine it with other people, then you should do that in all haste. But I would desire the committee concur with my recommendation that we proceed with the bill; send it back to the chamber; allow all of us to debate this issue, with the understanding that when we get to the end of third reading when the vote will be called, we ask probably the current Speaker or the Government Representative to seek Royal Consent and to go speak to a Privy Councillor, presumably the Prime Minister, to get the agreement.

I would suggest that as the debate goes on here, we will get feedback officially or unofficially as to where they want to go. If this fails, we already have a fallback position, as provided by this committee.

I'm suggesting that we solve this problem now as opposed to potentially create some future conflicts between the senators and the Governor-in-Council if we give them the option of selecting from our list of five. What happens in that selection process if we don't come up with five? I can see it happening that there are not five people among us who are interested in seeking the position of Speaker. It's a big job. It takes a lot of energy. "It's not a job for sissies,'' as I say. There is that possibility that we come up with a list of three, not of five. What if we came up with a list of one? If we came up with a list of one, what does the Governor-in-Council do then?

This is an opportunity for us to get this over and done with now. I would hope this committee would send this bill back to the chamber with a recommendation that we proceed and acknowledge that prior to the vote at third reading, we seek Royal Consent.

Senator Lankin: I have another question, but I just wanted to comment that I, of course, was not here at this committee when the debate about the committee's recommendation on the process for selection of a Speaker took place, so there may have been a full exploration of the options, including an option such as this, and there may be reasons why that was rejected. If that's the case, I will go back and read that, and I will respect what discussion has gone on before.

If that hasn't happened, I would appreciate the opportunity to hear some people talk about and contrast the two models of proceeding, addressing some of the constitutional issues and some of the ways around them, et cetera, so that when it comes into the house, all senators have the opportunity to have a full understanding and knowledge of what's before us. That's just a procedural comment, senator, in terms of what I would appreciate.

I do have one other question, and this is a question that comes from, in part, my lack of knowledge about all aspects of the job of the Speaker and the role outside of the administration and care-taking of the Senate Chamber and business of the Senate — the diplomatic and protocol role of the Speaker. I don't have full knowledge of that.

I do understand that there's an order of precedence that comes from the Crown, including the Governor General and the Speaker of the Senate and then the Speaker of the house. There is an important extra Senate Chamber role that is empowered by the current process of selection or naming through the office of the Governor General as an agent of the Crown.

On one hand, I understand the point that you're making around modernization and taking control of our own procedures, administration and business. On the other hand, there's this other piece that many people talk about, which is respect of the Westminster system and parliaments. I don't know where those two things weigh off. It's not a commentary; it's a genuine question on my part.

Senator Mercer: Senator, I would suggest that the other responsibilities that are dictated by the position of being Speaker of the Senate, particularly the order of precedence, et cetera, are very important things. I would also suggest at that point when we are going to select our own Speaker, when we're going to sit down in the chamber and have a debate about what we're going to do, when we have people who have expressed an interest in wanting to be Speaker of the Senate, one of the gauges of the decision of those of us who will vote as to who to vote for will be based on his or her ability to fulfill not just the role of presiding in the chamber but the role that is dictated by that person's presence in the order of precedence. You're absolutely right: There's a diplomatic role. It is an important position.

Senator Wells and I just had a recent trip with the current Speaker to the Czech Republic and Slovenia. It was very apparent how important the Speaker was, diplomatically. That would be something that would weigh on us as we make the selection and vote for candidate A or candidate B. Which one of those candidates will be, first, able to run the chamber effectively, but equally, are they going to be able to fill the role that the Speaker of the Senate has in the Government of Canada in representing Canadians? That's a very legitimate question and one which we should all be asking when we vote after this bill passes and we get to elect our first Speaker.

Senator Tannas: I wanted to follow this idea of getting to third reading and then arriving at the question of the royal prerogative. As Senator Joyal has said, the government has kind of already telegraphed that they have had this visit and that they have the advice that we don't want to hear, which is that the provinces would need to sign off. I think that's what Senator Joyal was saying was being telegraphed to us.

But let's assume that it wasn't being telegraphed, but the time comes and that is the opinion of the government's lawyers, which we probably won't accept because we don't want to accept it today. Why wouldn't we skip that and see if there is some way that we can get ourselves a Supreme Court reference to settle the question in advance? Would you be in support of that, if there were some mechanism to do that?

Senator Mercer: I was just writing that down as you were posing the question. That may be where it ends up, but let's get it there. Not doing anything is never going —

Senator Tannas: Exactly.

Senator Mercer: — to get the question before the Chief Justice or before the Supreme Court. It may end up there. I'd rather it not, because I'd rather it get done. But I'm sure that, as always happens in this business, somebody challenges it and it will go to the Supreme Court.

On occasion, we have challenged things ourselves. Senator Joyal has been very active before the Supreme Court on behalf of issues that have been before this chamber. I don't disagree with you, but we can't get there if we don't pass the bill. If we don't challenge the existing structure, the existing structure is going to stay the same.

Senator Tannas: Maybe I'm way out to lunch, but without somebody suing us, we can ask for a reference.

Senator Mercer: Yes, and maybe that's what we do. If we go to third reading and prior to the vote we ask either the Speaker or the Government Representative to seek consent to do this, and everyone says, well, none of us are sure whether we can do this, then guess what, the next place is the Supreme Court.

Senator Tannas: Right.

Senator Mercer: And a referral be made to the court and ask the court to make a ruling and away we go. By the way, I'm not a lawyer.

Senator Tannas: Nor am I.

Senator Mercer: The last thing we need is more lawyers, I guess.

Senator Tannas: I always like "and.'' So why wouldn't we do the interim step and at the same time go ask for a Supreme Court reference?

Senator Mercer: I'm not against that entirely, but if you want to force the issue, my bill forces the issue. My bill forces someone to give an answer to the question. If we sit back and wait, we could take the recommendations of this committee, because I know this committee has done some really terrific work, and I appreciate many of the recommendations you have made, but I think this one has some flaws in it and my recommendation solves that, and if it's challenged, then so be it.

Senator Tannas: Fair enough. Senator McIntyre talked about additional duties. Do you see any kind of beefed-up role for the Deputy Speaker that could come as a result of us all electing the Deputy Speaker? Is there something to be done there, do you think, or is it just to replace the Speaker in the chair when the time comes?

Senator Mercer: Currently I think that last comment is it, but I think there is an opportunity to develop a greater role. As this chamber changes and we evolve — and we are evolving, for better or worse, I think generally for the better — there could very well be a greater role for the Deputy Speaker. I think that he or she could be doing much more.

Senator McIntyre and Senator Lankin raised the issue of the other duties of the Speaker of the Senate that are diplomatic, and there may be a need to do that. I don't see any problem in doing that, but I think that has to happen in consultation with the Speaker and with the 104 other members of the chamber.

Senator Stewart Olsen: Thank you for your bill. It's quite thought-provoking. I come from this being really ignorant about it, and so I'm asking you a question. From Senator Joyal's comments, whoever recommends the Speaker to the Governor General, as long as the Governor General appoints that person, I'm not sure we're in a constitutional mess at all. I just think he's still appointing, so I'm not sure why it's a constitutional problem.

The other thing is why on earth do we have to ask a Privy Councillor for permission? Going to your thought process, you just go ahead and elect someone, and you either take it directly to the Governor General or you ask the Prime Minister to take it to the Governor General.

Senator Cools: It doesn't work like that.

Senator Stewart Olsen: I'm not sure why we have to get all the permissions. If you could answer that, I would be very grateful.

Senator Mercer: I'm with you. I don't know why we have to ask everyone. However, recognizing traditions, I would suggest that if we followed my bill and we went to that process, that one of the wrinkles at the very end would be that we would leave the chamber and recommend that Senator X will be our Speaker. We would deliver that message to His Excellency or Her Excellency and say, "Here is who we want as our Speaker.'' We would exclude in this process talking to our friends down the hall in the other place. We would go directly to the Governor General, as we can, and say, "Your Excellency, here is who we have elected Speaker,'' and the Governor General would then say, "I appoint Senator Stewart Olsen as the Speaker of the Senate.'' And it would be just a formality that he or she would accept the recommendation of the members of the Senate. That's where I come from.

Senator Greene: When I walked into this room, I looked upon your bill as a challenge to our recommendation, in that it was an either/or situation. Either we have your bill or we have our recommendation, but I realize that it's not either/or. It might be an interim step, as Senator Eggleton says, or it might not be an interim step. Our recommendation might be as much as we can do if your bill doesn't survive.

I certainly support our recommendation, because I think it is the best we can do within the confines of the Constitution, as we understand it, but I also support it on the basis that in all the recommendations we have, as they are a basis of hard-won, in many cases, compromises won around the table, and I support the compromises we have all made. I've made a lot of them, I know.

If I can boil this down to a question — and it's kind of a non-question in a sense — basically what you're saying is it can't hurt us to ask the question; right? It can't hurt us to pursue your bill. In the absence of your bill, supposing we, in the end, come to a vote in the chamber on our recommendation, will you be supporting both our recommendation and your bill, when it comes down to it?

Senator Mercer: I haven't heard the debate on the changes recommended. I've obviously read the changes. You've asked me to make a decision that I was hoping I could put off or was actually hoping I wouldn't have to make.

I think an interim measure is better than no measure.

Senator Greene: Right.

Senator Mercer: However, I think my bill brings it to a final decision as opposed to an interim decision. The interim decision would be better than what we have now, but that still doesn't satisfy me as a parliamentarian or as a Canadian trying to change this place. I don't think that changes the place.

I can see in the future a conflict between the man or woman walking by the Prime Minister's chair and this chamber, and we have had that in the past. When I came here, the majority was very heavily on one party, but prior to my arrival it had been the other way, even though the government had been different. Even though parties are taking a temporary backseat, I would argue that we could get into a conflict between the Prime Minister and the chamber. This removes any conflict with the Prime Minister. The Prime Minister can not like our Speaker, but guess what, it's our Speaker. It's not the one he appointed.

I would suggest that, ultimately, when we elect our Speaker, that it would be a recommendation to the Governor General and he or she would follow our recommendation as he or she currently follows the recommendation from the Prime Minister. We would just remove the Prime Minister from the process.

Senator Greene: So do I understand you to say that you will support our recommendation in the chamber as well as, of course, your own bill?

Senator Mercer: I would rather that we only deal with mine, but if we have to deal with both, then obviously I'd rather have half a glass of water than none.

Senator Greene: Agreed, thank you.

Senator Frum: Senator Mercer, I'm largely in sympathy with what you are trying to achieve, although I am persuaded by Senator Joyal's argument that the best way to go about this is through the recommendations in the sixth report rather than a bill that requires constitutional amendments.

I would like to better understand why you think this reform is so important. I heard your response just now to Senator Greene, but if the goal is to achieve greater independence of the Senate Speaker from the government of the day, I also heard you say that you think that the diplomatic role and the order of precedence for the Senate Speaker should remain the same. I don't know how a Speaker could have a diplomatic role that is not in harmony with the government, the Prime Minister and the foreign minister. It has to be.

Senator Mercer: Senator, in the past 10 years and up until last year, there was a government in power that I was not in agreement with. You know where I stand, politically, and I have an opinion on a lot of things. However, when I travelled on parliamentary business, for example with parliamentary associations — particularly when I recall my frequent trips to the United States for the Canada-United States Inter-Parliamentary Group and I visited senators and congressmen and met with people down there — when I was there, I was representing Canada. Whether I liked the policy or didn't like the policy, it was the policy — in this case of the Harper government — that I was proposing and supporting. It wasn't easy sometimes for me, but I remember a specific incident when we were visiting a senator in Washington. It was me, a New Democrat MP and another Conservative senator. That Conservative senator was not a big supporter of Mr. Harper, so three people in the room were not really big fans of that government, but we were there following the diplomacy. That's what we do.

When Senator Wells and I were in Slovenia and the Czech Republic together, Senator Wells and I don't agree on all policy issues but we were there. That's our job. And if you can't accept that, then you shouldn't accept the job.

Senator Frum: I think that's a very honourable position you're stating and it's the correct one and I do appreciate that. But you did say in a previous answer that when senators are thinking about who to choose and vote for as the Speaker, that they should be mindful — I don't have your exact words — of the diplomatic role and how that individual might play that role. What that says to me is you're really saying that senators should be selecting somebody who can work closely with the government.

Senator Mercer: No, I would rather look at it this way: I think we should select someone who would be a better representative of both the chamber and of Canadians. We could appoint a Speaker tomorrow and the government could fall and there would be a new government in 30 days. We'd still have the same Speaker.

Senator Frum: Would we?

Senator Mercer: With due process. We could end up with the same Speaker with a different government. My picture of a Speaker is a person who can work within the system to support Canadian diplomacy, whatever the Canadian diplomatic policy might be on an issue at the time.

We travel now around the globe. I talked to somebody recently who was at a NATO meeting. One of their jobs was talking about the NATO issue, but the second part of their job was also to talk about votes from their country for Canada's seeking a seat on the UN Security Council. Some of our colleagues — you may be one of them, I don't know — may not like that, but you do it. That's what your job is. You're speaking on behalf of Canada.

Senator Frum: It's a very principled position, but the reality is that people would have to put their names forward for this position. By definition, there will be a self-selection process. Because of this very large diplomatic role of the Speaker, the self-selection process means that you will understand that part of your job is to promote the government's foreign policy positions. How much of a reform is this really? The Speaker will end up reflecting the government of the day, no matter how you slice it.

Senator Mercer: He or she would be required to do that, but we're all required to do that or we don't, or shouldn't, participate.

Senator Frum: Understood. That means some people won't participate.

Senator Mercer: If I were to have gone to a Canada-U.S. meeting in the past 10 years and sat there and spouted Liberal Party policy, that would be wrong. I can do that at the bar with people after the meeting, but if I'm sitting in front of an American congressman or senator, my job is to consider our objective — we always talk about our objectives when we go to these meetings — and I promote the government. That's the government that the people have elected and have determined what that policy is.

The same would apply to the Speaker, but the Speaker has a different, much more senior and influential role in terms of things that are not that controversial: continuing building friendships between us and other countries and alliances around the world. Many times, I think the Speaker probably tries to avoid the conflicts. It's wise to do and it makes it easier, but we haven't had any major conflicts lately.

Senator Cools: Thank you, Senator Mercer, for coming before us. I thank you for all the supreme work that you've done in preparing this bill, but I must tell you that I have great problems with it, because I see this bill as setting aside — actually, running roughshod over — many long and well-established principles. The Senate Speaker, as we know, is truly a Vice-Regal. This is a fact. The Senate Speaker is capable of representing Her Majesty all over the world.

The Senate Speaker is quite different from the House of Commons Speaker. The House of Commons Speaker is the mouth of the house, the mouth of the members. The Senate Speaker is not the mouth of the members; the Senate Speaker is the mouth of the Queen. That is why, when we are summoned to the opening of Parliament, it is the Speaker who calls people before him to tell them Her Majesty — well, her representative, the Governor General — will be coming and causes them to assemble as we do in Parliament. That's one of the few cases where the whole Parliament is in Parliament assembled, and it has to be in the Senate Chamber. It can't be anywhere else. It can't be in the House of Commons.

We keep talking about the Supreme Court judges, but you're forgetting that the Supreme Court judges are deputized as representatives of Her Majesty and they are made deputies of the Governor General when they come here to do Royal Assents. In the instance of if the Governor General were to fall ill, die or something sudden like that, it's the Chief Justice of the Supreme Court who will carry the job — I think it's called the administrator — and will take over the actual position of Governor General and function in that way.

I think that the Senate Speaker, as I said before, is an entirely different creature than the House of Commons Speaker. The House of Commons member is the mouth of the members but the Senate Speaker in the Senate is the mouth of Her Majesty. We have to remember the Senate is the upper and the royal house. It is the Senate. When Her Majesty comes or the Governor General comes, they must come to the royal house. That's why it's red and not green.

I just don't understand how we can simply ignore these principles. Even in the United States of America, which has always had an anti-monarchist element, their Constitution recognizes that their President of the Senate should be in the form of a vice regal. The United States of America Vice President is the President of the Senate of the United States of America. The Americans have maintained that tradition quite purely. This is the strange thing about the American Revolution and the American Constitution. They're very radical and in many instances remarkably mundane and loyal to very old customs.

There's no deputy Speaker. There's a Speaker pro tempore. The position of Speaker is never, ever deputized to the Speaker pro tempore.

Senator Joyal: He is officer of the Crown and cannot be deputized.

Senator Cools: That is it. He represents the Crown in the Senate. At all times, our system says that we must have the representatives this way. The House of Commons is based on rep by pop. The Fathers of Confederation tossed this out, worked it out and abided by it. The House of Commons is based on representation by population. That is why they can elect their House of Commons Speaker. The Senate is not.

The Senate is a totally different institution and we just can't decide one day that, well, this doesn't sound good so let's try a new thing. Constitutions do not work by trying new possibilities. As a matter of fact, constitutions do not like novelties at all.

I'm having difficulty conceptualizing how this can be achieved. I thought of raising this, but I didn't want to upset you: First of all, any issue that touches what we call the law of the prerogative or requires Royal Consent — and Senator Joyal and I used to raise a lot of those and won on many points. This bill should not properly be before us without the agreement of the Governor General that it should go ahead. Only a minister of the Crown can give such agreement in the two chambers.

Senator Mercer: Senator Cools, we have had that discussion here this afternoon, and I fully agree that we do need to have consent, but the suggestion has been made that we proceed with this bill up to the point where we're going to vote in third reading, and then we seek consent and I assume we will get consent.

Senator Cools: Consent from whom?

Senator Mercer: You said we need consent from a Privy Councillor. I would suggest —

Senator Cools: Not a Privy Councillor. It's a representative of Her Majesty. It has to be a minister; only a minister can declare Royal Consent in either house.

Senator Mercer: Right. The issue is that even in Westminster, the House of Lords elects their Speaker by votes of members of the lords.

Senator Cools: It's a different house.

Senator Mercer: This place is changing. Whether we want it to change or not, it's going to change. We need to evolve. My recommendation is that if we were to follow my bill and we have the election, the election can be in the form of our recommendation to His or Her Excellency, as you pointed out.

Senator Cools: No, it can't be. You can't do that.

Senator Mercer: You know what? Why can't we? Why can't with we try?

Senator Cools: Because it is outside the scope of the law that we must abide by.

The Chair: We have Senator Mercer presenting his bill. Your points are well taken. Keep in mind there's another step to this in terms of clause by clause and reporting it back. All of that will be done.

Senator Tardif: Thank you, Senator Mercer, for being here. As expressed by many colleagues, I totally support the intention of the bill to elect a Speaker. However, I'm trying to reconcile comments made by Senator Joyal with regard to the need for Royal Consent and your bill, Senator Mercer. If I understand correctly, we need consent for a change to the powers of the office of the Governor General. In doing so, we would need some form of provincial consent. Where do you see the role of the provinces as this bill goes forward, should it go forward?

Senator Mercer: I would suggest that we avoid that by the fact that what we're doing is recommending a name to the Governor General, the same as the Prime Minister recommends a name to the Governor General, to appoint as Speaker. The Speaker is appointed by the Governor General. He or she takes the recommendation currently from the council and the cabinet; i.e., the Prime Minister. I suggest that not change. What would change is that they would not take the recommendation from the cabinet; they would take that recommendation from the members of the Senate. We remove it.

A person's appointment authority that I see us removing is not Her Majesty's, not the Governor General's but the Prime Minister's. We're moving that over to us making a recommendation, not the Prime Minister. That is the principle that's really involved. It's not Her Majesty. It's not the Governor General. It's the Prime Minister. That's whose power we are removing. We're shifting that to the chamber, to all of us.

Senator Joyal: On that very point, you would change 200 years of constitutional convention to which the only authority recognized being in capacity to advise the Governor General on the exercise of the power of the Crown is the Prime Minister.

Let me finish explaining that to you. Only the Prime Minister can advise the Governor General, as section 34 stands, to appoint the Speaker of the Senate. The Governor General is not allowed under constitutional convention to seek the advice of anyone else but the Prime Minister, because this is a power of the Crown.

It's not me who has established that. It's the longstanding practice of constitutional convention. You're asking us to think that we're going to be able to change the secular constitutional convention that only the Prime Minister advise the Governor General. It's a very steep mountain to climb, in my opinion, to contend that would be something the Senate could do.

The other point that I would like to submit is that the Senate cannot send a reference to the Supreme Court to check the constitutionality of the bill you propose. Only the Governor-in-Council, through a decision of the government, can determine the question that will be sent to the court. If the government is amicable to your proposal, the government can refer it to the Governor-in-Council to have a decision formalized. Then the question is sent to the Supreme Court. But the Senate has no status to send a Senate bill to the Supreme Court, according to section 53 of the Supreme Court Act. It's not me who decided that; it's longstanding jurisprudence.

Senator Mercer: Senator Joyal, 200 years of constitutional authority is a long time, but that doesn't make it right today. In 1982, Senator Joyal, you were part of the process that also threw out some convention in this country, when we liberated the Constitution from Westminster and moved it here.

It changed in 1982. There's absolutely no reason it can't change in 2017 or 2016. There's no reason we can't do that. So I don't let 200 years stand in my way, and you shouldn't let 200 years stand in your way.

Senator Eggleton: I don't see anything in this bill that says that the election of the Speaker by the members of the Senate would then be sent to the Governor General for approval.

Senator Joyal: It's not me who said that.

Senator Eggleton: It's not in the bill.

Senator Joyal: That's what Senator Mercer said.

Senator Eggleton: Yes, but there's nothing in the bill that says that. It's a draft bill, and it doesn't say that.

Senator Mercer: But if it's the desire of the chamber, then it can certainly be amended do that.

Senator Eggleton: I think he's trying to catch you in a trap.

Senator Mercer: Senator Joyal would never do that to me.

Senator Eggleton: The original bill is that we would select our own Speaker, the same with the House of Lords. There isn't anybody closer to the Queen than the House of Lords. They elect their own Speaker, and I don't think the Queen finds that objectionable. I don't see why the Governor General would object to the power resting in the hands of the Senate.

I don't think the kind of functions the Speaker would do are relevant to this bill or to the discussion today. It's relevant overall and should have a separate discussion.

This bill is simply we should be selecting our own Speaker, and I think we should stick to that. If we want to have some other examination of what his terms of reference and powers are, fine. The person is a non-partisan position. They're not there as the mouthpiece of the government. They're there as the mouthpiece of the Queen, if you will, of the Crown. Even the current Speaker calls himself an independent.

I agree with Senator Joyal that the Supreme Court, quite aside from the legal ramifications of not being able to go that route, wouldn't get us anywhere. I think the opinion you would likely get from the Supreme Court is the one that Senator Joyal gave us earlier on in the session.

If we believe this is the right thing to do, then we should press the issue. We should go forward with this bill. I accept that a Royal Consent would be needed so that therefore it should pause once it comes out of this committee before it gets third reading so that Royal Consent is sought. If it's not achieved, that's the end of the matter. But if it is achieved, then it can go ahead.

I don't see why people are going to get all upset about the Governor General, and I don't think the Governor General is going to get upset about this diminishing the power somehow of that office by this one simple thing, which is in accordance with what is already done in the House of Lords, the mother of all parliaments, and it's in accordance with what is done in the House of Commons in this country and legislatures in this country as well, all of which operate under the Crown, I might add.

The next step for this would be to get a couple of witnesses to talk about it, but not from the constitutional framework, because I think Senator Joyal has adequately covered that and I accept what he says. This would require Royal Consent prior to a third reading, and then a constitutional amendment under section 44 would proceed from there. I accept that. But the practicality of going this route might be something that there are a couple of speakers that we might hear from.

The Chair: That's exactly, Senator Eggleton, what's been going through my mind.

First of all, let me just quote the motion that was moved by Senator Cowan in December 2015:

That the Special Senate Committee on Senate Modernization be appointed to consider methods to make the Senate more effective within the current constitutional framework.

That was our mandate.

When we made a recommendation with respect to sending on five names for the Prime Minister to consider and pass on to the Governor General for approval, it was at least something. We knew that we were embarking and touching on constitutional matters, but we thought, look, in the good faith of the Prime Minister, they may just take that advice and select from the five.

We knew your bill was there. We wanted you to have the opportunity to come today and present it. You've done that, and we're going to deal with it, but we're going to have to get a little more information, and it may be a witness or two. In any event, what would happen is we would ultimately do clause-by-clause of the bill, send it back, and then at third reading the Senate would determine what is or is not necessary.

As you would appreciate, having served on many committees, Senator Mercer, we want to do the best we can in determining what is right and wrong. We have an expert on the committee with a lot of experience with respect to the Constitution. We're going to defer. We're not going to do clause-by-clause today or anything like that. We will come back to this bill in the not-too-distant future. We have two professors next week. It will be dealt with. It may not be until we get back after the break.

Senator Mercer: Colleagues, I'd like to thank you for the generosity of your time and your questions. I look forward to your support when it does come time for a vote by this committee.

The Chair: Thank you for coming.

Next week we have Professor Philippe Lagassé, followed by Professor Andrew Heard, and he will be by video conference. Is there any further urgent business that you would like to bring up? It is amazing we have not run out of time.

Senator Stewart Olsen: What are the two witnesses next week going to talk about?

The Chair: The Westminster system.

Senator Stewart Olsen: Do we have to do this next week when we're trying to wrap up government business?

The Chair: It's over lunch, and you have to eat.

Senator Stewart Olsen: I'm just saying. It's one more thing to shove in when we're trying to get other stuff done.

The Chair: The problem is it's a matter of time. Today I'll stand in the Senate and ask for an extension, because we're supposed to have our final report in by December 15, and extend it to June 15. May 15 we will want our second report. I don't have to tell you when you look at the calendar how much time we have. Not a lot. I appreciate your concern, but we have got to go again next week.

We stand adjourned.

(The committee adjourned.)