Making Life More Affordable for Canadians Bill

Honourable senators, I rise as an institutionalist, not an activist, but I do feel it is important to put a couple of points to this body as we consider the motion before us.

I would like to begin by recalling a speech given from this very seat by Ian Shugart in June 2023, where he invited us to anticipate the future with him. He said:

In this Parliament, we have witnessed a sea change in the composition of the upper house. If the present government is re-elected —

— and they ultimately were —

— we can expect further evolution of the Senate. The further we get from a party-based Senate, the more entrenched will be the idea of independence and freedom of action. Taken too far, we could find ourselves with many senators effectively setting themselves up as a de facto opposition to the government. We could be left with a frequent or perpetual standoff between the two chambers, as more and more independent senators claim a right to block legislation coming from the elected chamber.

Alternatively, notwithstanding the current attention being given to foreign interference, I am convinced that our democratic institutions and process are healthy enough to give us a different government. Should that be the case, some senators may feel it is their right and obligation to oppose any legislation from the other place if it reflects a philosophical perspective with which they disagree. Given the numbers that can be projected, this could be a recipe for legislative paralysis. To be blunt, either scenario creates the possibility that this institution could be at risk of acting undemocratically — ironically, by allowing tightly held principle to trump constitutional convention and deference to the will of the elected chamber.

In either situation, we have the seeds of constitutional crisis. . . .

He ends by saying, “We have benefited from restraint in this country, and, in these times, we need it again. . . .”

In April 2018, I tabled a document with colleagues entitled Complementarity: The Constitutional Role of the Senate of Canada. I want to briefly recall some of the points made in the chapter labelled “In the Senate, Self-Restraint is the Constitutional Watchword.”

It would be misguided to equate the Senate’s “formal powers” under the Constitution with the Senate’s “role” in our constitutional architecture. This is a false equivalency. The Senate’s powers do not define the institution: they exist to serve it in the appropriate discharge of its role as Canada’s complementary upper house.

To be clear, the issue to be addressed is not how far the Senate can go in its relationship with the House of Commons, for its powers allow it to go farther than any other unelected legislative body in the democratic world. Rather, the question is how far the Senate should go when it challenges the will of the elected chamber.

I continued, saying:

The Senate’s constitutional role is not strictly defined by its constitutional powers. In fact, the method of selection chosen for the Senate in 1867 is a much more accurate indicator of the Senate’s intended function. Senators are appointed precisely because the Founders believed that, without a democratic mandate, senators would have the good sense to thwart the will of the House of Commons in only rare and exceptional circumstances.

It is crucial, in this time of change in the Senate, to recognize the subtlety of the role that the Founders of Confederation envisioned for the Senate. They sought an upper house with enough power to act as a legally effective safety valve against the tyranny of the majority . . . .

The bottom line is that Confederation provided an opportunity to return to the relative safety of an appointed upper house that worked as a complement to the elected lower house instead of as a rival. . . .

The Supreme Court confirmed as much in 2014 when it decided that implementing consultative elections for the Senate would require a constitutional amendment involving substantial provincial buy-in. Having combed through numerous pleadings, historical materials, doctrine, and expert evidence, the Court unanimously opined that under the constitutional architecture adopted by the Founders, our upper chamber was specifically designed to exercise voluntary self-restraint in its relationship with the House of Commons. Consultative elections for Senate seats would have fundamentally upset this balance . . .

The court was crystal clear, and I quoted the judgment:

“The choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process. Appointed Senators would not have a popular mandate — they would not have the expectations and legitimacy that stem from popular election. This would ensure that they would confine themselves to their role as a body mainly conducting legislative review rather than as a coequal of the House of Commons.”

As I commented:

The Supreme Court . . . could hardly have been more explicit: the constitutional design of an appointed . . . Senate reflects the unequivocal intent of the Founders to ensure that the democratically elected House of Commons’ work would be complemented by an appointed chamber of sober second thought. As Smith notes, “rather than compete, the upper house completes the work of the lower house.”. . .

In this context, it was indicated:

. . . that senators were intended to study government legislation by applying their sage and independent judgment, while maintaining a healthy level of self-restraint in challenging legislation that has been passed by the House of Commons. . . .

Hence, by constitutional design, the Senate’s natural bias should be self-restraint. Or, as the philosopher Larry David might advise senators: curb your enthusiasm.

But what is appropriate self-restraint? The short answer: it’s complicated.

And here we are in a complicated situation.

I want to say a few words about where we are. I, at least as an institutionalist, will not give in to the cynicism I have heard even in speeches today about the intent. I don’t believe that the House of Commons is trying to pull the wool over our eyes. I don’t believe that there is a cynical adding of this measure to a bill to prevent us from dealing with the matter contained in Part 4 because it is a money bill.

I believe it honestly was the earliest opportunity for the unanimous view of a minority Parliament, which understood that it had not found the vehicle to deal with it in previous minority Parliaments to move forward. I believe they are probably as surprised as I am that we have had the kind of debate we have had on this measure over the last number of weeks.

So if you are an institutionalist, I think you have to take the other chamber at its word and believe that it is proceeding in good faith.

This amendment, in my view, is overreach. It is overreach with respect to the role of the Senate, and it is born of a cynicism I will not share and I do not believe this institution deserves.

In the second reading speeches, I particularly liked Senator Deacon’s speech because it was broadly informed on the policy issues which have animated the debate in the Legal Committee as well as in this chamber for that second reading speech and third. I went up to him afterwards and said, “It was a terrific speech. If your intent is to educate us and hopefully educate the broader public, including, perhaps, the other chamber, on the issues around PIPEDA, I’m all for it. In fact, I would be the first to propose a motion that a special committee of the Senate, not just Legal Affairs, be constituted to do that.”

I was the deputy minister responsible for PIPEDA 25 years ago. It is not as easy as any of the speeches here have suggested. It is a very complicated process of trade-offs and expectations, and the technology around information itself has changed over 25 years, which is why Canada went from being a leader 25 years ago to being a laggard today.

I am always trying to look for constructive opportunities for the Senate to move on issues that it feels are important that are not obstructive of the will of the other place.

Colleagues, I very much urge us not to pass this amendment or, frankly, any other with respect to this measure, but do not give up the discussion and the debate and, in an informed way, move forward so that the environment for legislative action can be more mature than it has been over the last three years.

While I welcome the reference to the Legal Affairs Committee for Part 4, I do not welcome the amendments placed before us. I believe that it is important for us to have, particularly in a minority Parliament — our third in a row, by the way — which is a new government. I know some people will think this is the tenth year of the Liberal government. It’s the first year of the Carney government.

The relationship that it forms of what an independent Senate should be will be shaped by how the independent Senate works. The biggest threats to an independent Senate, frankly, are independent senators in our behaviour, negotiation and relationship with the other chamber.

I, for one, believe in the model that we constituted now almost 10 years ago, and I would urge you to think about the longer term and consider how we can be an instructive partner in the legislative dialogue between the other house and our chamber.

For that reason, colleagues, I urge you to reflect for a moment, breathe deeply and ask, “What is in the interest of the institution in the longer term?” Please, let’s move on.

Thank you, Senator Harder, for your speech. I want to respond and then ask you a question as an institutionalist.

My first response is with regard to Senator Shugart, who sat in your seat. I was here sitting in that seat, listening to his speech about restraint. He gave me 30 minutes of time after that speech so that we could speak about it, because I found it to be remarkable. In that conversation, we agreed to disagree. I found it remarkable that, at that time of his life, he would grant me time so we could talk about it. I appreciate you raising that.

I also want to respond to the cynicism piece. For me, it’s really about trust and what it feels like to knock on doors and build trust between federal political parties and electors. It’s from a very personal place and not a place of cynicism.

You said that you speak as an institutionalist. You stood up and said, “I’m not an activist, I’m an institutionalist.” I want your reaction to this: Institutions have to change. This institution is different than it looked 10 or 20 years ago. There has to be built‑in change and evolution. The former prime minister made that a focus for this chamber.

As an institutionalist, do you not recognize that there has to be some evolution and that there already is? We’re there. We’re in that moment.

I very much welcome that question because, while I say I’m an institutionalist, I hope that doesn’t mean I’m a regressive preservative.

I came here 10 years ago — as of next month — and was asked to provide some leadership to the notion of a less partisan, more independent Senate. The appointment process was put in place.

When I arrived, it was rather lonely as I looked across a very large group opposite me. Senator Carignan was the leader at the time. We were building new practices as we went.

I remember the first budget bill. Senator Carignan came to me and said, “How many votes do you have?” I said, “All I know is I’ve got three.” He said, “You’ve got to be kidding.” I don’t know. I was glad to see that the bill passed because of the willingness of the chamber to accept its role.

There is practised restraint. It’s not advertised, but it was practised restraint. We had amendments to the Standing Orders, which were sessional orders to accommodate the change.

Senator, I think this chamber has evolved tremendously, not just because of the independent senators who were appointed, but because of those who were here before. They adapted, perhaps somewhat less enthusiastically than others, to this evolved Senate.

What I want you to know, though, is that there is a risk of overplay. That is the risk I would like you to reflect on because I think the reaction of a new government, a minority government, a government that is under tremendous pressure in the circumstances of the moment, would not welcome the upset that some of the senators would have on this and other pieces of legislation, which are —

Thank you, senator.

There’s another senator who wanted to ask a question, but the time allowed has expired. If you would like to answer another question, you will need to request leave for more time.

I’m happy to continue. I would like to request leave for more time.

Is leave granted, honourable senators?

I hear a “no.” Leave was not granted.

We’ll continue on debate with Senator Dalphond.

Honourable senators, I rise to speak to Senator Clement’s amendment. I may discuss the sunset clause later.

This debate is not simply about a technical provision. It involves the constitutional consistency of our federal electoral system.

Allow me to place this discussion in its legal context.

First, let me remind you that Part 4 of Bill C-4 seeks to amend the Canada Elections Act to make changes to the requirements relating to political parties’ policies for the protection of personal information, as stated in the summary of the bill. Essentially, these proposed amendments seek to affirm Parliament’s exclusive jurisdiction over federal electoral matters. They are intended to address the imprecision in the Canada Elections Act highlighted in a ruling by the Supreme Court of British Columbia in 2024. That ruling is being appealed.

In its ruling, the court concluded that the Canada Elections Act did not constitute a comprehensive regime that would prevent the application of provincial privacy legislation to federal parties. Bill C-4 is also the second attempt to adopt such a provision. The government introduced and debated Bill C-65 at first and second readings. The bill was introduced on March 20, 2024, and died on the Order Paper.

The question is not whether privacy protection is important. Obviously it is. Clearly, the following question can be answered unequivocally: Who is responsible for enforcing federal election law? Obviously, Parliament is. Can we allow a provincial law to define an essential part of the federal government’s jurisdiction over elections?

Before going any further, I want to point out that the purpose of election legislation is to encourage citizens to take part in the electoral process, to promote communication between candidates and voters and to encourage people to exercise their right to vote. The purpose is also to ensure fair treatment for people who wish to vote. At the same time, the purpose of provincial privacy legislation is to regulate the collection of information by private companies that want to sell products or services. These are two completely different worlds.

Honourable senators, we can’t engage in this debate without bearing in mind that the foundation of the Canada Elections Act is the importance of operationalizing and regulating voter eligibility and the equality of voting rights among Canadians. That foundation is established in section 3 of the Canadian Charter of Rights and Freedoms, which reads: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” This right applies consistently to everyone and uniformly from province to province and may not benefit one group of citizens to the detriment of another or benefit one group of candidates to the detriment of another.

These are not abstract concepts. Federal elections law governs voting across the country. It must not be fragmented by province or by region. The communication of information between voters and candidates is essential to the electoral process.

In 2008, I ran as a federal candidate for the Conservative Party of Canada in the Rivière-des-Mille-Îles riding. I was also a candidate in a provincial election and in municipal elections. You’ll find out later why I’m pointing this out.

To run in an election, candidates must reach out to voters, introduce themselves, present their party’s views — ideally in the voter’s language — and convince voters to support them. The main tool used to do this is the list of electors. The Canada Elections Act strictly regulates how this list is distributed. Section 110 authorizes parties, candidates and members of Parliament to use lists of electors to communicate with electors, including using them to solicit contributions and recruit party members. Lists of electors are the primary source for gathering information about voters. Their use is strictly regulated. As Senator Dalphond said, section 111 of the Canada Elections Act expressly prohibits them from being used for any purposes other than those provided for in section 110. Any commercial use is prohibited; any use unrelated to political activity is prohibited.

The list of electors is to be used for political purposes. It is also used for canvassing. Those who have stood for election know very well what canvassing entails. The goal is to identify citizens who support our party — or who do not — and who are likely to vote. Communication with voters goes both ways, in the sense that, as candidates or volunteers, we communicate with voters, but voters also communicate with us. They voluntarily and willingly provide us with information about themselves. This concept of freely sharing information about themselves is fundamental.

Canvassing lists show whether a person previously voted for the party or contributed to another political entity. I would remind you that political contributions are public. Other information is voluntarily provided to parties in a political context. It is possible to compile data on who participated in rallies for our party and who volunteered for the party. Other information can be useful. Perhaps a voter at the door mentions that they’ll be away on voting day or that a neighbour or loved one had died but is still on the voters list. You make a note of that.

Canvassing is how we get to know voters. Getting out the vote is at the heart of an election campaign. It is central to exercising the right to qualify under section 3 of the Charter and to equal voting rights among Canadians.

Lists of electors contain sensitive information about citizens, so they’re obviously not accessible to the general public. Misuse of the lists may result in penalties under part 19 of the Canada Elections Act.

In short, the ways that this information may be used are strictly limited. Section 56 of the Canada Elections Act is clear: The information in the lists of electors may be used for authorized political purposes only. This means that contacting electors, soliciting support, organizing political activities, recruiting members and raising funds or encouraging voter turnout are permitted, but nothing else.

What the act prohibits is equally important. Again, section 56 of the Canada Elections Act prohibits any commercial or non-political use of lists of electors. This means that any commercial use, sale, transfer to unauthorized third parties, or use unrelated to political activity is strictly prohibited.

Personal use of lists of electors is also prohibited. This is no mere administrative directive; it’s a legal requirement. The Commissioner of Canada Elections can impose sanctions. This authority arises from section 508.1 and following, which set out contraventions of some of the act’s provisions. Non-compliance with the policies for the protection of personal information required under sections 385 and 446.5 constitutes a violation punishable by monetary penalties, among other types of penalties. The amounts are prescribed in regulations.

Honourable colleagues, Part 4 does not amend sections 56, 110 or 111 of the act. It does not remove the penalties in Part 19. It does not remove any investigative powers. It affirms that the regime applicable to federal parties constitutes a national, uniform and exclusive framework. It clarifies jurisdiction. It preserves the Canada-wide consistency of a single federal election. Deleting this provision would not strengthen the protection of personal information. It would reintroduce jurisdictional uncertainty that could affect the system’s consistency and in turn affect the equal exercise of the right to be qualified for membership, as guaranteed by section 3 of the Charter.

Imagine for a moment if all the provinces’ disparate privacy laws applied to the Canada Elections Act. The right to be qualified for membership and the right to a means of communication with electors could be strongly supported and respected in one province, but significantly diminished for another candidate in another province. It would be completely inconsistent, and that is exactly what could happen if Senator Clement’s amendment is adopted.

As a lawyer, I challenged Quebec’s Election Act on the grounds that some of its provisions favoured certain candidates over others. For example, the act provided that the candidates who had ranked first and second in the last election would receive a financial advance in accordance with an order. A privilege was being offered to one candidate but denied to the others. The act was ruled unconstitutional, specifically because it violated section 3 of the Charter. The right to be qualified for membership applies to everyone equally, the implication being that there must be no disparity among the candidates. Similarly, candidates may not receive different financial privileges. The rules governing electoral communications must not vary from province to province, especially where a regional party exists, like the Bloc Québécois in Quebec. One province’s rules for electing a member must not be different from another province’s. However, this is precisely what Senator Clement’s amendment does. It creates a heterogeneous application, not harmonized with the Canada Elections Act.

As a final point, I have to say that I was surprised and disappointed by certain comments that discredited and devalued the work of the members of the other place, who were said to have devoted little time to studying Part 4. Such comments overlook the fact that a similar bill had been studied during the previous Parliament, specifically Bill C-65 and its clause 71. That bill died on the Order Paper. Nevertheless, members of the other place had done a thorough analysis of the bill. Furthermore, such comments devalue the conscientious and rigorous work of the Department of Justice officials who draft bills.

I therefore urge you, honourable senators, to vote against this amendment but to support Bill C-4, even though I am its critic.

Honourable senators, as a former party activist, I’m not particularly concerned about the section that is contentious today. However, I’m concerned it is in a budget bill. I think it should be a stand-alone bill.

I want to take a few moments to share some information that I received from former senators over the years about how the Senate should be conducted. It might be informative for some of the newer senators. I want to respond to some of the comments about the role of the Senate.

When contentious bills are before the Senate, there is a view that if the Senate exercises the powers it was given at Confederation in 1867 to defeat government legislation, it would either be a major crisis or, certainly, an affront to democracy. It has been repeated over and over that it is not the role of the appointed upper chamber to block legislation passed by the elected House of Commons, and this is especially so when it is legislation that a party may have run on in an election campaign.

This would be important if it were true, but in the Senate between 1867 and 2015, 50 government bills were defeated by the Senate. Many more government bills were held up in committee or died on the Order Paper and were never allowed to advance to a vote.

Notwithstanding the Senate’s refusal to pass government bills, the country has not had a constitutional crisis or a collapse of the parliamentary system. Bills were defeated in the Senate even when the government had an explicit election mandate.

For example, in the 1993 federal election, the then opposition leader Jean Chrétien said that if he were elected, he would cancel the planned changes made by the previous government regarding Toronto Pearson Airport. Mr. Chrétien promised, during the 1993 election, an independent review of the Pearson redevelopment project. He said:

I’m warning everyone . . . if we become the government, it will be reviewed, and if legislation is needed (to overturn the deal), we will pass the legislation.

What happened? Mr. Chrétien won the 1993 election and became Prime Minister; the deal was reviewed; it was decided legislation was needed; legislation to end that passed in the House of Commons, but it was defeated in the Senate, notwithstanding the clear election promise and the mandate Prime Minister Chrétien received from the Canadian public by winning the 1993 election. That was as clear an election promise as you can make, and still the Senate defeated the legislation.

Maybe the words of Canada’s first prime minister were top of mind for senators who defeated that legislation. As we all know, John A. Macdonald said:

There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. . . .

What happened after the Pearson Airport agreement, Bill C-28, was defeated? The government was upset and annoyed, but Canada did not fall into chaos.

It has also been repeated that senators can’t and should not vote down government bills they don’t like simply because of the difference between them and other parties. It is not the job of the Senate to block the will of the electorate.

But tell that to the women of Canada when restrictive abortion legislation was defeated in 1991 by the Senate of Canada after passing in the House of Commons. The government of Brian Mulroney had the legislation passed in the House of Commons, but it was defeated in the Senate.

It is also worth noting that the Conservative women senators who voted against the legislation were appointed to the Senate by Prime Minister Mulroney — the prime minister who was trying to get the legislation passed. The Senate said “no” to the House of Commons, and some members of a partisan political party caucus stood their ground and voted the way they believed was correct. Colleagues, that is an independent Senate and what it looks like.

In June 1993, Bill C-93, the budget implementation (government organization) bill to merge the Canada Council and the Social Sciences and Humanities Research Council, was also defeated in the Senate.

What about other examples in the history of Canada and the Senate when the Senate could have voted differently but chose not to? Let’s think about how things would have turned out differently. One example that comes to my mind is the War Measures Act during the FLQ crisis. Did the Senate make the correct decision at the time or just the popular one? Did the Senate fail to exercise its responsibility? Faced with intense public pressure, I understand why senators voted as they did, but senators, like judges, who have tenure to the age of 75, have job security for a reason: to vote without fear or favour.

Colleagues, notwithstanding any public pressure, we have to ask ourselves some questions. Is the Canadian Senate here to go along and get along, or is it here to have votes and decisions stand the test of time? During difficult moments in the life of our nation, how important is it for the Senate to stand its ground in the face of governments urging passage of their legislation?

Governments always want their legislation passed, often quickly. Promises are made to address problems at a later date. Personally, I have always wondered why we would pass up the opportunity to fix problems now.

In addition, as I mentioned earlier, to defeat government bills, the Senate, over the years, has simply delayed bills and not allowed any votes to occur. Some bills would not be sent to committees, some bills in committee would never come out, and some bills were never allowed to have a final vote.

Before the rules were changed, it was much easier to do. For example, when Allan J. MacEachen was the Senate Liberal leader in the 1980s and 1990s, bills were held up on a variety of topics, including the redistribution of House of Commons seats for the 1997 election. Think about that. They were abandoned by the government due to opposition in the Senate. A major bill on employment insurance died in the Senate, and a new transportation act never advanced because of opposition in the Senate — again, no vote.

Again, added to the list are laws on drug patents, refugees, copyrights, energy — the list goes on and on.

The most famous of these might be when the Senate refused to proceed with the vote on the Canada-U.S. Free Trade Agreement until a federal election was held. After the clear election mandate, the Senate passed the bill.

Colleagues, when I read the quote from Sir John A. Macdonald earlier, the key words for me were “when it is thought proper.” That is a decision every individual senator has to determine on every vote and every bill.

I wanted to add some historical context to the discussion, given some of the remarks I heard earlier today. Thank you, colleagues.

Are honourable senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion the “yeas” have it.

Do we have an agreement on the length of the bell? Fifteen minutes. Is leave granted, honourable senators?

The vote will take place at 5:56 p.m. Call in the senators.