MESSAGES FROM THE HOUSE OF COMMONS — Making Life More Affordable for Canadians Bill

Moved:

That, in relation to Bill C-4, An Act respecting certain affordability measures for Canadians and another measure, the Senate do not insist on its amendment with which the House of Commons has disagreed; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable senators, I rise to speak to the message we received from the other place and to ask that we accept its decision.

I want to begin by thanking all senators for their work at every stage of this bill, including the Committee of the Whole last June, the meetings of the Legal and Constitutional Affairs Committee and the National Finance Committee, and the debates in this chamber.

The official opposition plays a critical role in our parliamentary system. I also want to thank Senator Carignan for his constructive input during this bill’s development. Lastly, I want to thank Senator Cuzner for his excellent work as the sponsor of Bill C-4, and I sincerely hope that he won’t completely rule out the possibility of sponsoring more bills in the future.

Honourable colleagues, you heard the message from the other place. Since our last discussion on Bill C-4, the Prime Minister has announced that by-elections will be held on April 13 in three ridings. This calls to mind two of the fundamental reasons for Part 4 of Bill C-4.

First of all, it is vital, logical and advisable for federal political parties to operate within a uniform federal electoral framework.

Second, it is essential to counter the effects of a ruling that would have subjected our electoral system to a patchwork of legal regimes, rendering it dysfunctional. At the Standing Senate Committee on National Finance, and again in this chamber, I presented the arguments that today’s message reiterates.

Let’s not forget that part of our role is to ensure that the democratic will respects constitutional principles. It is not our role to compete with that will when it is expressed clearly and without division. In the Patriation Reference, the Supreme Court recognized that Canada’s constitutional architecture is not limited to the text itself, but includes other overarching principles, such as democracy and institutional balance.

In this case, the elected chamber has voted almost unanimously on the very rules that govern the electoral process, that is, on the normative infrastructure of democratic representation.

Part 4 of Bill C-4 has the unanimous support of all recognized parties in the House of Commons, including the Bloc Québécois. This unanimous support is certainly not a constitutional convention, but it is a constitutional fact with a very strong democratic impact.

Like Senator Harder, I also explained how the Senate must exercise virtue and restraint and respect the delicate balance of our parliamentary architecture.

Colleagues, I do not intend to repeat these arguments. I would rather focus on an aspect that, in my view, was not sufficiently explored in this debate.

As a complementary parliamentary body, the Senate sometimes has to work in solidarity with the elected representatives of Parliament. In this uncertain and divided world, at a time when the values of liberal democracies are under attack, this solidarity is all the more essential. Political parties are at the heart of Canada’s style of governance. They are central to Canada’s democratic process.

Canadians engaging with politics on a daily basis identify closely with the political parties that make up the House of Commons. At a time when our federation is facing separatist threats, we must recognize that federal political parties are also a uniting force for Canada.

To be clear, this does not mean that political parties are untouchable and that their work should remain unchecked and unchallenged. On the contrary, for democracy to function properly and be as representative as possible, we must accept that the various institutions within it can function differently.

For example, social movements operate outside of formal political processes. This chamber has achieved gender parity today thanks to women’s movements in Canada and the momentum they generated for recognition of their rights.

Just a few days ago, Senator McBean spoke about the stigma that members of 2SLGBTQ+ communities still face today. It is hard to imagine such a speech being delivered in this chamber without recalling the social movements that, with good reason, continue to campaign for the recognition of their rights.

In other words, colleagues, in a liberal democracy, social movements, civil society, the courts, interest and advocacy groups, and Parliament itself, each in their own way, with their formal and informal rules, shape our democratic life. The ideas they promote influence political parties and, through them, sometimes even the composition of the House of Commons.

Political parties are often criticized for their lack of transparency. They’re often portrayed as closed-minded organizations that impose their ideological brand on MPs and Canadians, just like private businesses. I can assure you, based on personal experience, that this is far from the truth. Even though we don’t always see the inner workings of political parties, they do engage in healthy and often extremely robust debate. In choosing their priorities, caucuses give voice to what Canadians want because they represent the communities that chose them. How else could they get elected?

Social media and traditional media often negatively influence our perception of political parties. Their often harsh and sometimes incomplete analyses fuel some of the cynicism that people feel for political parties.

In reality, in each of Canada’s 343 ridings, recognized parties and smaller parties form more than a thousand riding associations run by tens of thousands of dedicated volunteers who in turn interact with hundreds of thousands of Canadians during every general election.

Colleagues, our political parties are much more firmly rooted in the daily realities of our constituents than even the most famous of our political commentators.

In his presidential address to the Canadian Political Science Association, Professor William Cross of Carleton University explained that they are passionate supporters of their favoured parties, engaging in activities that have profound implications for our politics. This is the secret garden of our politics.

Colleagues, as the message from the other place indicated, the government intends to bring forward additional privacy provisions in legislative changes to the Canada Elections Act within this parliamentary session.

Colleagues, I am not suggesting that this is a promise or that I have prophetic powers, but I expect the privacy provisions to reflect the realities I just described.

Political parties are unique entities in our political system and should be treated as such. While political parties do have national headquarters with paid employees, they are also, and more importantly, driven by tens of thousands of volunteers dedicated to serving democracy in Canada.

As a former elected member of a provincial legislature, I naturally feel a special connection to the elected parliamentarians in the other place. I also believe, especially in this time of crisis when the legitimacy of representative democracy is sometimes questioned, that it is also the duty of this chamber to support the work done by our elected representatives. I don’t know a single elected member of a provincial legislature, or even of Parliament, who gets up in the morning thinking about how they can harm their voters. I don’t know a single one.

We should have the utmost respect for the men and women who have the courage to put their face on some posters and ask their fellow citizens to support them. Those people are brave. In order to keep our democracy healthy, it is our duty to encourage men, women, young people and everyone who represents social groups in Canada to seek a democratic mandate and get themselves elected. That is how Canadian democracy will remain healthy, strong and an inspiration to the world.

I am absolutely sure the other place is listening, because the government’s message about reviewing the privacy provisions in the Canada Elections Act is clear.

Nevertheless, once we get a chance to revisit this legislation, and after listening to the concerns of privacy advocates — legitimate as they are — we will also need to make sure that we hear from the political parties themselves, not only their lawyers, as well as from volunteers who work for riding associations, to ensure that our reports and recommendations better reflect how democracy works at the local level.

We have to listen more to the people who do the sometimes messy work of democratic politics and pay attention to the opinions of the men and women volunteering in the trenches.

In conclusion, honourable colleagues, the Senate protects constitutional democracy. It must not appear to stand against it when democracy has spoken with one voice.

I submit, out of respect for our duty of sober second thought and consideration, that institutional caution demands restraint commensurate with the democratic consensus voiced in the House of Commons.

I therefore ask that you accept the message sent to us by the other place so that we can get Royal Assent on Bill C-4 today. This bill contains many important measures, and Canadians are eager for them to be passed.

Thank you.

Honourable senators, I will try to be brief.

I, too, would like to thank Senator Cuzner and Senator Carignan for their work on Bill C-4. I would also highlight that they came into this particular project from a unique perspective. They both happened to have put their names on ballots, and they both happened to have been elected at various levels of government.

It is also important to highlight and consider that the Senate should be very diligent in picking its spots if we want to remain legitimate. You’ve heard me say many times that we have not only the responsibility but the obligation to be robust when it comes to reviewing legislation. I have also said many times in this chamber that it is clear in our Constitution that we have the same rights and privileges as parliamentarians in the House of Commons, but it doesn’t take away from the fact that we are appointed. We always have to weigh and measure very carefully how we exercise those rights and privileges. They come with a huge responsibility.

I remember the gentleman who appointed me to this chamber, the Right Honourable Prime Minister Harper, who himself had deep reservations about an unelected chamber. He always used to say, “You are given a tremendous privilege, and if you are going to oppose a piece of legislation, make sure you have the full weight of the public and voices across this country who feel not heard legitimately in the other place.” That means we have to really be tempered and carefully consider the steps we take when we oppose a piece of legislation.

In this case, we all know that this legislation was approved 100% by every single member of the other place. It was approved by five different political parties in the other place. I think that when you put together the composition of the votes of all those political parties, it comes out to close to 97% of the Canadian electorate.

Again, for those of us who have engaged in politics — and I’ll reiterate what the government leader, Senator Moreau, said — I, too, have never met a politician who got up in the morning and said, “How can I deliberately contravene the rights of the people I represent in a representative democracy?” If you know any politician of that nature, they don’t last in this business for very long.

When we take all these elements into consideration, we did more than a robust job that went above and beyond the duties and responsibilities of this chamber. On behalf of the official opposition, I want to say that we have to absolutely respect the message that has come back.

Thank you, colleagues.

Honourable senators, allow me to thank my colleagues, Senator Moreau, Senator Housakos, Senator Cuzner and Senator Carignan, as well as all senators who spoke on Bill C-4. I believe it is important to hear everyone’s voice.

I rise today to speak to the motion relating to the message from the other place rejecting the Senate amendment to Bill C-4, An Act respecting certain affordability measures for Canadians and another measure.

Despite this unfavourable outcome with regard to the Senate amendment, I welcome the fact that the government is officially confirming, through this message, that it intends to introduce additional provisions in the current parliamentary session aimed at strengthening privacy protection through amendments to the Canada Elections Act.

Colleagues, I would like to begin by sharing how proud I am of the work accomplished by the committees that studied Bill C-4, particularly the Standing Senate Committee on Legal and Constitutional Affairs. The committees worked in a condensed format of six hours of study in a single day, conducting a serious examination of Part 4 of this bill amending the Canada Elections Act. The testimony heard by that committee clearly showed that Part 4, on the protection of personal information by political parties, was seriously flawed. Academics, experts and rights organizations highlighted the considerable risks that Part 4 posed to democracy, digital sovereignty and national security.

Confronted with such serious issues, this chamber had a duty to examine and respond to them, which it did diligently by passing an amendment at third reading.

Today, honourable colleagues, we must decide whether to bow to the wishes of the other place to defeat this amendment, or to stand by our wish to pursue it. In the circumstances, I’m going to comment on the principles of deference. My goal is to offer a balanced view of the Senate’s role in examining government bills, and then further reflect on the deference that the Senate owes the elected House.

I want to set the record straight on this because I believe that certain speeches, in the absence of adequate context, could damage public trust in our democratic institutions and in the consideration given to important bills like Bill C-4 and could equally damage many other bills.

The more we speak of deference without nuance, applying it to any and all situations, the more that context becomes meaningless. We have to approach the matter of deference in a way that protects the Senate’s raison d’être while respecting the intent of the founding fathers.

Our bicameral system, which is the result of the constitutional compromise that gave rise to our country, consists of two separate but complementary chambers, contributing to the institutional balance of our democracy. The upper chamber’s core mandate is to protect regional and minority interests, thus filling a democratic deficit that would be impossible to fill with a single elected chamber that represents the interests of the majority.

We cannot simply invoke deference to question whether the exercise of our duties is legitimate. Let’s be clear: The principle of deference in no way reduces our institution’s responsibility to conduct a rigorous and independent review of the legislation presented to us. Our sober second thought may lead us to propose and adopt amendments, as we did in the case of Bill C-4. That is perfectly legitimate.

Deference should not mean silence, and respect for the elected chamber should not mean abandoning responsibility to examine legislation carefully.

In a 2017 opinion piece in Maclean’s, Professor of Political Science Emmett Macfarlane illustrated this perspective when discussing the newly reformed Senate:

The Senate is not engaged in activism when it proposes amendments that are accepted by the House of Commons. The Senate is not engaged in obstructionism when it proposes amendments the House of Commons refuses and it then passes the original legislation. Instead, the Senate is merely exercising an advisory or complementary role consistent with its purpose. One might even argue that the record thus far suggests the new Senate has in fact acted with more principle than in the recent past.

This perspective reminds us that exchanges between the Senate and the House of Commons are not evidence of institutional conflict but part of the collaborative legislative process that strengthens public policy.

Sir John A. Macdonald, whose legacy remains complex, envisioned a healthy democratic dialogue between the two chambers. During the debates on Confederation in 1865, he argued that members of the upper chamber would represent the broader interests of the country and could legitimately challenge the elected chamber when necessary, reflecting what he described as the “. . . deliberate will of the people on general questions . . . .”

When speaking on the duty of deference, it is important to consider these views and provide a balanced perspective. Independence requires intellectual honesty and a principled approach based on evidence. The concept of deference must be understood in relation to our independence.

History demonstrates that deference in the upper chamber is usually triggered later in the parliamentary process, rather than at second reading, committee stage or third reading. If, upon review of the proposed legislation, the Senate deems it important to send a message to the other place, it should do so without constraints. This dialogue between the two chambers improves transparency and accountability to the public about what might be of concern with certain bills. Those exchanges are not evidence of institutional conflict; they are the constitutional design of our great democracy.

The Senate, even when highly partisan, actively shaped legislation across a wide range of policy areas. For example, the Senate influenced the outcome for a major borrowing bill in 1984, Bill C-11; proposed amendments on two pieces of controversial immigration legislation in 1987, Bill C-84 and Bill C-85; and proposed amendments for employment insurance reform in 1989, through Bill C-21.

It also intervened on measures with major economic or social implications, such as a copyright bill — Bill C-60 — in 1987 and the abortion bill in 1991, when the Senate famously defeated the bill in a tie vote.

As the late Queen’s University political scientist Ned Franks observed during his testimony before the Special Senate Committee on Senate Reform, while disagreements between the chambers sometimes occur, claims of Senate obstruction are often “. . . greatly overrated . . . .” The modern Senate, more independent and diverse than at any other point in history, continues to play this role by bringing expertise and regional perspectives to the careful review of legislation.

These precedents show that, historically, the Senate has not automatically deferred to the other place while a bill is under study. It also calls into question alarmist narratives suggesting that amendments and dialogue between our two chambers are somehow new and specific to a modern Senate. In fact, more recent history reflects the continuation of this long-standing dynamic of dialogue between the two chambers.

For example, the Senate’s consideration of the Cannabis Act in 2018 resulted in 5 substantive amendments that strengthened the government’s approach; and, in the case of Bill C-69, which enacted the Impact Assessment Act in 2019, it led to a total of 99 Senate amendments.

I knew you would like that reference, Senator Housakos.

Deference should only be exercised after thorough, independent examination and when senators have fully considered the implications of the legislation. To defer prematurely would be neither intellectually honest nor in the best interests of Canadians. Participation in the legislative process free from partisan interests and electoral pressures should be recognized as a valuable and essential part of our democracy.

That brings us to a very simple reality: In a healthy democracy, scrutiny is not a problem to be avoided; it is a safeguard to be valued.

As the Senate has modernized over the past 10 years, it has demonstrated stability for Canadians. Senators’ independent and evidence-based review of legislation enables the chamber to fulfill its purpose of safeguarding the long-term interests of Canadians. Moreover, this vision of the independent Senate is more aligned with the Supreme Court’s interpretation of our Constitution.

In the 2014 reference by the Governor-in-Council concerning reform of the Senate, the Supreme Court of Canada stated the following in paragraph 57:

. . . “[i]n creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons” . . . . The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove senators from a partisan political arena that required unremitting consideration of short-term political objectives.

Since Confederation, the Senate has acted as an anchor for Canadians, especially amid changes in government and fluctuating short-term priorities. Whereas, governments may respond to immediate policy needs, partisan considerations and re-election pressures, the Senate contributes objectivity, continuity and a long-term view in the legislative process.

The Senate’s study of Bill C-4 provides a clear example. The Senate fulfilled the role assigned to it by the Constitution by examining provisions that had received limited scrutiny and by raising legitimate questions about the protection of Canadians’ privacy. By sending a message to the other place, this chamber ensured that these issues received the careful and impartial consideration they deserved, reinforcing Canadians’ expectation of a transparent and accountable legislative process.

In conclusion, since my appointment to this chamber, I have witnessed the senators’ commitment to examining legislation both thoroughly and efficiently in order to safeguard the interests and values of Canadians. This work is carried out with a clear appreciation and genuine respect for the role of the elected chamber.

As we consider future legislation, let us bear in mind that deference must not become an excuse for abandoning our constitutional responsibilities. Respect between chambers does not mean silence; it means dialogue. When the Senate examines legislation carefully and proposes improvements, it strengthens both our laws and the democratic institutions Canadians rely on.

This is the fundamental principle: The Senate was not created to echo decisions but to examine them carefully, and that is exactly what we must continue to do.

Now, with respect to the message concerning Bill C-4, a legitimate question arises: Should we show deference to the will of the other place or reiterate our determination to maintain our position?

The Senate has already clearly expressed its view and fulfilled its role of careful scrutiny. Our position has been noted by the other place, and Canadians are aware of it as well: The Senate is determined to strengthen the protection of their personal data collected by political parties.

At this stage, however, the elected chamber has reaffirmed its position by rejecting our amendment. One option now before us is to show deference to that expression of democratic will, and that consideration should be taken into account as we prepare to vote on the motion before us.

Thank you for your attention.

Honourable senators, I would like to request to revert to ask a question. I need to say, as I have said so many times, that I am not a small person, and I am not a wallflower. It is not as if I blend into the wallpaper here.

I stood immediately after Senator Moreau made his speech. I stood and was not recognized. I stood immediately after Senator Housakos made his speech. I stood and was not recognized.

I have one question to ask, and I would like to ask for the support of the chamber in reverting so that I can ask my question.

Do Senator Moreau and Senator Housakos agree to take questions?

I only need one.

Which one, Senator McPhedran? Do you want to ask a question of Senator Housakos?

Yes.

Is leave granted, honourable senators?

Thank you very much, colleagues.

I really want to say a big thank you to Senator Moncion. What was said on the record just now is very important, and we need to keep it in mind.

Senator Housakos, you made reference in your speech — along with Senator Moreau, over and over in the previous debate on Bill C-4 and again today — that this was a unanimous decision of the House.

My question to you is this: Did you know that there was a larger wrap-up motion that was itself passed unanimously but did not indicate unanimous support for the bills within it?

We’ve been told repeatedly — including in your speeches — that there was no division; however, inside that wrap-up motion, Bill C-4, Bill C-13 and Bill C-12 are all mentioned, and Bill C-4 and Bill C-12 are specifically described as a vote on division. Were you aware of that?

Yes, I was. Were you also aware that at second reading, there was a standing vote, and of the 343 MPs, not one voted against it. Were you aware of that?

Not all the MPs in that chamber stood. On both occasions for Bill C-4 and Bill C-12, Elizabeth May registered on division. And in reference to the wrap-up motion, it names her explicitly in both of those.

My understanding is that at second reading, the Leader of the Green Party voted for the motion, then I believe at third reading, she had other reservations. But the bottom line, senator, is an overwhelming number of people in the chamber voted in favour of this bill.

What is even more important, which I did not mention in my remarks, is the following: At the end of the day, the Canadian democracy is the most respected democracy in the world. To be honest with you, as someone who has participated at a distance within it, I find it quite insulting the level of debate that took place in this chamber by senators like ourselves who were appointed by the elected prime ministers in-house to provide sober second thought. To somehow be disparaging about our electoral system — one that is respected around the world — quite frankly, I think we are doing a disservice to our democracy, our process and this very Parliament.

Would Senator Dalphond take a question?

Senator, one of the phrases in the message is one that I don’t agree with. It says that there is a long tradition of the Senate deferring to the House of Commons when it comes to the Canada Elections Act. In research that Senator McPhedran did, she found that the Senate amended the Canada Elections Act 15 times in the last 20 years. That suggests that this chamber does not show special deference with respect to the Canada Elections Act.

First of all, I would suggest that this phrase in the message is not factually correct, and I would like your view on that.

Second, I would also suggest that this chamber has a vital role in our democracy, as do the courts, the media and civil society. We all must play a role in the health of our democracy.

Surely, we should not defer to the political parties in the House of Commons. They play a vital role as well, but we should never accept the notion or the argument that we have a less substantial role to play in creating and maintaining a strong democracy. I would like to make that statement. Thank you for your comments.

Senator Dalphond, will you take one more question?

Thank you. My question is on the issue of unanimity. Senator Moreau and Senator Housakos talked about the high degree of support. Senator McPhedran corrected us, saying that the language in the motion is particularly “those who have unanimous support of all the recognized parties.” That is what we can agree on. Indeed, Elizabeth May has indicated that she was not in favour of this.

My main question is this: To me, it doesn’t really matter that it was a unanimous vote or an almost-unanimous vote. The issue is that it was passed by the House of Commons by a majority of votes. If it was a near-unanimous vote or had the unanimous support of all the recognized parties, it strengthens the case, but it is not a necessary number. The number is 50% plus one. If they were to send the bill back to us with 50% plus one of the votes, it would be as legitimate as a unanimous vote. I want to make that point because, at another time, there may be a vote that is not a near-unanimous one, and, in my mind, it is as legitimate. I would like your view on that.

I see that Senator McPhedran wanted to ask you a question. Do you want to ask for more time to answer Senator McPhedran’s question?

Okay. Thank you.

This will be brief, but I think it is important to put it on the record before we vote on Bill C-4.

I want to summarize what these sections dropped into a bill on affordability, which is very important for Canadians, and of course, senators will want to support and promote it.

However, in the middle of a bill on affordability for Canadians, we have slipped in this sneaky invasion of the privacy of Canadians.

In Part 4 of Bill C-4, there is a removal of any requirement on the part of any federal political party in this country to protect the personal, private information of Canadians.

In Part 4, clause 45, it says that any of the provisions for the protection of privacy are “. . . deemed never to have come into force and is repealed.”

The bill then says that Part 4 of Bill C-4 will come into force in the year 2000. We are now in the year 2026, and this bill reverts to 26 years ago.

The Senate asked why amendments to the Canada Elections Act are buried in this affordability act. We asked thoughtfully and courteously, but we asked. It is a very legitimate question.

I want to quote member of Parliament Elizabeth May, who dissented on Bill C-4. It was not unanimous, and frankly, Senator Housakos, to claim unanimity at second reading, when the final vote on the bill was clearly not unanimous, is interesting, shall we say.

I’m quoting Elizabeth May:

The government says it is sending this back to the Senate, that they have no business, and let it slap them on the wrist for thinking that they can presume to tell anybody in this place about the Canada Elections Act.

Senators who have spoken in this house have claimed that Bill C-4 was carried unanimously in this place. My objections were recorded on the record even in the so-called unanimous consent motion. It says, “. . . noting the opposition of the member for Saanich—Gulf Islands” —