Moved second reading of Bill S-228, An Act to amend the Constitution Act, 1867 (property qualifications of Senators).

He said: Honourable senators, I rise today to speak to Bill S-228, An Act to amend the Constitution Act, 1867 (property qualifications of Senators).

This marks my third attempt to bring forward such a bill, though similar versions were also introduced by our former colleague the late senator Tommy Banks. I am touched to mention this dear departed colleague of ours because I know that Senator Banks was heartened when I promised him I would carry the torch on this bill when he retired from the Senate.

Because I have made other speeches in this chamber about this bill, I will keep my comments brief.

The bill seeks to remove the $4,000-net-worth requirement for all senators, as well as the $4,000 property requirement for all senators except those coming from Quebec. At the same time I tabled this bill, I also tabled a motion, which I will speak to today, that deals with the property requirements in Quebec. Stay tuned, because I will have more to say on that topic later.

I have introduced this bill and its accompanying motion for two main reasons. The first is that this bill would erase a major gatekeeper for prospective new senators — a major barrier for some. I believe that when we hear from Canadians with diverse cultural backgrounds, different faiths and varying lived experience, we are all the better for it. Diversity is Canada’s strength and therefore should be represented in its institutions. In the Senate, our diversity — happily — engenders lively, rich and well-rounded debates and enhances our ability to speak up on issues important to minority populations and regional concerns. That is one of the mandates of the chamber and one that I am ardently committed to.

However, at this moment, we have requirements that were originally created to keep the masses out; we have requirements that have sought to ensure that this venerable institution was ruled only by wealthy landowners meant to temper the great unwashed who ruled the other place.

Here are the facts: According to a post by Consolidated Credit Canada, as of November 2021:

Canadians now have an average of a $1.73 debt for every dollar they earn. A large amount, which totals $2.1 trillion dollars of debt in the country. . . .

A February 16, 2022, Global News report tells that:

The purchasing power of Canadians waned further last month as wages were outpaced by an annual inflation rate that topped five per cent for the first time in more than 30 years.

The annual inflation rose to 5.1 per cent in January compared with a gain for 4.8 per cent in December, Statistics Canada reported . . . driven higher by prices for housing, gasoline and groceries.

Over the same stretch, wages rose by 2.4 per cent, a gap in purchasing power inflamed by rising costs for essentials like food that often hit lower-income households the hardest.

Finally, the National Post, in a June 17, 2021, article, listed the many factors that have contributed to sky-high real estate prices that have made home ownership impossible for many Canadians. This list includes foreign investors who have purchased “vast swaths of the Canadian housing market as investment properties.”

They go on to explain that even though foreign buyers make up only a relatively small percentage of the total housing market:

. . . only a small fraction of a city’s housing market will come up for sale in a typical year, even a moderate amount of outside cash thrown into the mix can tip the scales into the realm of $1 million teardowns. Stock prices, for instance, are routinely sent into the stratosphere by buyers bidding up a small fraction of a company’s available shares.

Another factor they list is the issue of zoning bylaws that are geared solely toward single-family detached homes and the lack of developable land that is severely constraining the supply of available houses in the midst of an ever-growing population.

The National Post explains that:

. . . Canada’s per-capita supply of housing units is lower than in any other G7 country. Canada’s high rate of migration helps to increase supply pressures, but it’s no excuse for such an acute housing shortage given that, proportionally, our rate of in-migration is lower than Germany, the U.K. and even Switzerland.

Finally, the article lists the surging cost of construction burdened by increased land transfer taxes, increased municipal taxes and fees collected from home builders, supply chain issues and “a latticework of local regulations.”

They go on to say that:

Even before the construction industry became blindsided by recent spikes in the costs of lumber and other materials, the average Canadian home was already getting progressively more expensive to approve and build. And with so many Canadians existing on the absolute margins of home ownership, each new cost comes at the expense of pushing another demographic of families out of the market.

Colleagues, I’m sure none of this is new to any of you. We’ve heard for years about rising inflation costs and wages that don’t keep up with the increasing cost of food and other necessities. We know that Canadians are getting priced out of home ownership. All of this matters when we talk about this bill.

There are middle-class folks in their thirties and forties who feel they can never attain home ownership. Some of them are living in our basements. In 20 years, these future leaders in their fields, whose voices we deserve to hear from, would not qualify to be members of this chamber. By keeping these requirements in place, we are, in fact, going backwards rather than forward. We are returning to a time when only wealthy landowners have the privilege of participating in the upper house.

My mind always lingers on an August 12, 2016, article by the CBC entitled “Property condition dissuades Stratford woman from applying, but doesn’t dissuade Mi’kmaq Senate candidate.”

The article tells the story of two women from P.E.I., both of whom were Senate hopefuls. Kelly Robinson, a long-time and well-known resident of Stratford, P.E.I., who has worked in non‑profit and community organizations, was upset to see the $4,000 property requirement. She stated:

It felt like it was going back to when only landowners could vote, only landowners could be certain things . . . And I just thought that is not the Canada that I’m in or that I thought I was in. I think it’s a very old rule that hasn’t been properly confronted yet.

The second woman was P.E.I. Mi’kmaq filmmaker Eliza Knockwood, who didn’t own $4,000 in property. She applied anyway, with her supporters pledging to find a way around that if nominated. However, while that may have been possible under the old way of naming senators — such as was done in the well‑known case of senator Peggy Butts, a nun who had sworn a vow of poverty — my newer colleagues will know that the Selection Committee will not even consider your application unless you meet all the basic requirements such as age, residence, net worth and property. How many more qualified voices and perspectives are we missing here today because of these antiquated requirements?

The second — and more personal — reason that I have doggedly pursued this change is the fact that I am one of the very few in Nunavut who owns property with freehold title. Through a series of plebiscites, Nunavummiut residents have reinforced the Inuit principle that no one owns the land. Outside of Crown land and a few grandfathered plots, homeowners own the structure but are only leasing the land it sits on.

According to section 23(3) of the Constitution Act, 1867, which outlines the qualifications of a senator, “He” — and I’ll take a moment to point out how antiquated this is in that it still assumes only men are appointed senators, but that’s a side point. See if you can understand this:

He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed . . .

Having trained in the law, I can tell you that no one uses such terms as “common socage” anymore and haven’t for many years.

More importantly, I contend that the requirement for freehold title would strictly disqualify not only Inuit in Nunavut but also First Nations homeowners who hold land allocated by Certificates of Possession granted by the minister or “CP lands,” as they are known, which are technically leased from the Government of Canada. It may not even apply — there are some opinions — to those who only own condominiums, since the land is technically owned by the condominium corporation.

Honourable senators, there is no need for these requirements. Your ability to perform your duties is not dependent on whether or not you own property or have a particular net worth. According to the Supreme Court of Canada decision of April 25, 2014 rendered in response to a series of reference questions on Senate reform initiated by former prime minister Stephen Harper, the Supreme Court of Canada stated that:

We conclude that the net worth requirement (s. 23(4)) can be repealed by Parliament under the unilateral federal amending procedure. However, a full repeal of the real property requirement (s. 23(3)) requires the consent of Quebec’s legislative assembly, under the special arrangements procedure. Indeed, a full repeal of that provision would also constitute an amendment in relation to s. 23(6), which contains a special arrangement applicable only to the province of Quebec.

I will get to that special arrangement portion in my next speech on the motion I’ll be introducing today, but I would like to end this speech by emphasizing that the decision states Parliament can, indeed, unilaterally remove the net worth requirement for all senators and the real property requirement for every senator except those in Quebec, which this bill aims to do. We do not need to invoke the amending formula and involve provinces, apart from the special situation I mentioned in Quebec.

Colleagues, I do hope I can count on your support for this bill to modernize and reform the Senate. Thank you, qujannamik.

If the honourable senator would accept a question from me, I would first say thank you very much for your speech. Thank you for your efforts over and over again to right this wrong. It’s an embarrassment, as you have said. It’s an anachronism. It’s time for change. We hopefully will have a little longer in this Parliament to bring about this change. I hope it doesn’t take years, but I hope we can get it done in this Parliament.

Can you tell us why it has taken so long? What have been the obstacles up until this point to moving forward this very important motion to eliminate those net-worth and property-ownership requirements for Canadians to become senators, to come here and join us in this chamber? Would you tell us what the impediments have been?

Yes. Thank you for that question. When former senator Tommy Banks championed this same bill, which did the same thing, we didn’t have the clear advice from the Supreme Court in the decision that I quoted. That decision made it crystal clear, from no higher authority than the Supreme Court, that the amendment that I’m proposing can be done alone by the Parliament of Canada — the House of Commons and the Senate.

The spectre was raised at that time that this would require a constitutional amendment; it would require the invocation of the amending formula; it would require provinces to be involved. We’ve been through that movie, some of us, in connection with the repatriation of the Constitution and the Meech Lake and Charlottetown Accords. There’s no appetite, I believe, in Canada for going back into those challenging constitutional amendment processes.

That clouded the debate at that time. Now, this is an amendment of the Constitution. We can do it now — the Supreme Court is clear — with the consent of the House of Commons and the Senate. I think we are now in a better climate to consider this matter, just as, by the way, we’ve been considering the Saskatchewan Act amendment just recently in the Senate and as we’ve also done in other matters often brought forward by provinces to amend the Constitution where Parliament has the jurisdiction.

That is the problem that we clearly now don’t have. Your question is a good one. Why haven’t we eliminated this obvious and inequitable anomaly? I thank you for your support.

Yes.

Thank you for that question. Senator Deacon, I believe that this historical anomaly goes back deep in our Westminster parliamentary history, back to the time when there were Whigs and Tories, and landowners were considered more capable of making decisions for the people than were the rabble who were in the commons and who were not landowners. It was a time when it was considered that the wealthy were the best people to govern.

There’s a long history of class behind this distinction of privilege for the wealthy, the net-worth requirement and the land‑title requirement, and it’s clearly not egalitarian. It’s clearly not the way Canada sees itself, as a country with opportunities for all, even the opportunity to participate in this august upper chamber. The origins of this are buried in history. The language I read which describes the property requirement, referring only to males, is also a relic of our history, when it was thought that men were better qualified to make decisions for the public in Parliament. That’s obviously also a very antiquated and elitist requirement.

Our history is not a proud one of why this invidious provision is still in the Constitution of Canada. Let’s get rid of it. Thank you.

Senator Patterson, there are more senators who have questions. Are you willing to answer more questions?

I am willing, subject to the willingness of the house. Thank you.

Senator Patterson, I agree with you; the roots of this go back to 1867 which is — not coincidentally — the year that Britain passed the reform bill which gave universal manhood suffrage and the establishment of the Senate to be a cognate parallel of the House of Lords, a place where the closest thing they could find to landed gentry in Canada would sit.

I am deeply sympathetic to this bill and to the legacy of my dear friend Tommy Banks. I’m just curious how we could then ensure that senators live in the provinces which they are meant to represent. I remember my own screening process in which I had to provide, I think, four kinds of proof that I owned my house and lived in it.

How would we set up a system to ensure that senators really live in the provinces they are meant to represent without a property requirement?

I’m glad you asked that question, Senator Simons, because I relish the opportunity to make it clear that this bill will not diminish the requirement which is laid out in qualifications of senators that one reside in the jurisdiction that one represents.

This is a critical element of the qualifications for a senator based on our mandate to speak for regions. The requirement to reside is important and would not be changed by this amendment. Should it matter whether you live in a trailer, whether you live on a First Nation reserve or whether you live in a tent? Should that affect your ability to represent your region? No. It’s not from property ownership that you derive your legitimacy to speak for your region. It’s from living there, and it shouldn’t matter where you live, and that won’t change by this bill. Thank you.

Thank you, Senator Patterson, for this work. I think we’ve all had a good review of the bill, and I think it has also forced us to go back and look at the language and the use of language in the application process. While we’re at this, while we’re doing this important work right now, how does Canada want to see itself? How does Canada want to be?

As you’re going through this and reviewing the information as you have at this intense level, are there other pieces that jumped off the page for you that this is what we need to do here — without significantly changing other acts — that we also need to think about A, B or C? Did you have any reflection on that as you were doing your work and preparation? Thank you.

Thank you for that question, Senator Deacon. I thank honourable senators for the indications of support I’ve heard today. I’m awed at the prospect, with your support, of changing the Constitution Act. This is quite a humbling opportunity for any Canadian legislator.

The short answer to your question is that tackling this obviously arcane and inequitable provision in the Constitution Act relating to the qualifications of a senator, which senators in this chamber are very well familiar with, is a major step. We were all subject to the due diligence on meeting these criteria. I feel that changing this provision is a major step. So the short answer to your question, Senator Deacon, is, no, I have not looked at other flaws or ancient, inappropriate words in the Constitution Act. I’ve been focusing on this one. Thank you.

Thank you, Senator Patterson. Will you take one more question?

Yes.

Thank you. Let me also express my complete support for what you’re attempting to do. I have seen this measure come forward over the years, and wonder sometimes why things take so long.

I’m also very cognizant of the need for us to study proposals in-depth and ensure that there aren’t unforeseen implications. However, I wonder, given that this has been before this chamber before, if this is a case where we should move this to committee and get the study started. I am aware, reviewing the scroll notes, that there’s agreement that there would probably be an adjournment taken, but I ask you to consider whether that’s a necessary step. Are you ready with a referral to the question, should that be something that the chamber wishes? I certainly would like to see this get to committee to get us moving on this. Thank you.

Senator Lankin, your question is music to my ears. No doubt it’s an important bill that should be studied, probably by our Legal and Constitutional Affairs Committee. I’d love to see them delve into it, but you’re right; timing is everything. I have limited time myself in the Senate, and I would love to see this bill make progress while I’m still with you.

So I would be most open to allowing our committee to do their important work on this bill and other bills before us in this chamber. I thank you for that suggestion and would welcome the question being called at the earliest opportunity, since it has been extant for decades in the Senate. Thank you.