Non-Government Business

Inquiry--Debate Adjourned

February 6, 2020


Hon. Murray Sinclair
[17:06]

Rose pursuant to notice of February 4, 2020:

That he will call the attention of the Senate to the need for this House of Parliament to reevaluate its rules, practices and procedures as they relate to non-government business.

He said: Honourable senators, I rise to commence a Senate inquiry on a subject that I have been working closely on with our colleague Senator Dalphond. In common parlance, today we will be delivering what is known as a doubleheader.

Our aim is to begin a conversation on the need to change the Senate’s Rules in relation to non-government business. Specifically, the problem we wish to remedy is that the relevant Senate Rules, in place since major changes in 1991, favour and reward obstruction rather than decision-making. We hope that all Senate groups can work collaboratively to strike a better balance between the need to debate and the need to decide. Indeed, our initial ideas are based, in significant part, on Rule changes previously proposed in the Senate by the Conservative caucus.

Why do we need to change the Rules around non-government business? We have three reasons in mind.

First, democracy. As senators experienced in the previous Parliament, and as Canadians and members of Parliament observed, the Senate Rules make it almost impossible to trigger votes on private members’ bills from the House of Commons. Even after lengthy proceedings — in some cases, years — a majority of senators cannot vote on a bill if even a handful of their colleagues employ procedural tactics of delay.

I believe that our primary right and duty as senators is to decide on all matters that come before us. This is particularly the case for bills that express and address the decisions of the elected House of Commons. In the previous Parliament, however, 15 Commons private members’ bills sent to the Senate did not receive votes. In parliaments before that, similar situations have occurred.

It is an institutional problem. Since we are appointed to this chamber, it is important to respect the fundamental role of democracy in our society. This means that we must be diligent when we examine the work of our elected colleagues and when we vote on bills, and that we must respect the democratic processes in this place. We must amend the Rules to discharge this responsibility.

The second reason to change the Senate Rules is that our debate and voting processes ought to be more transparent to Canadians. The current Rules are complex and difficult to understand even for many experienced parliamentarians. For example, it is difficult to explain to stakeholders why the Senate may vote on an item as soon as tomorrow, or possibly never. In contrast, since 1986, and with subsequent improvements, the House of Commons Rules have provided an example of a fair, effective and accessible system of voting on the initiatives of individual parliamentarians. After 34 years, we think it’s time for the Senate to catch up.

Third, we think a more independent Senate ought to have a viable procedural avenue to vote on its policy contributions in addition to amending government bills or motions. This is particularly the case in a minority government, where government bills coming to us will be the product of compromises between political parties. The Senate should be able to vote on Senate initiatives including Senate public bills, common committee reports and motions.

For these reasons, we have developed five proposals to change the Rules of the Senate in relation to non-government business that we would like to encourage all of you to consider and discuss. Their unifying purpose is to create mechanisms for senators to vote on items after reasonable periods of time, with fair opportunities for debate and scrutiny.

Before moving to specifics, it’s important to explain why the Senate’s legislative record justifies making these changes. The purpose of providing this background is not to relitigate the proceedings of the previous Parliament; however, since we are making the case for change, it is essential to explain how the current rules have been applied.

In the previous Parliament, public attention focused on five instances of delay of non-government bills in the Senate.

First, the late Member of Parliament for Ottawa-Vanier, Mauril Bélanger, advanced Bill C-210 to make Canada’s national anthem gender neutral. The legislation proposed simple changes to the lyrics; however, Senate proceedings on this bill stretched on for over a year and a half. During that period, some senators obstructed the holding of a vote by repeatedly moving amendments, sub-amendments and sub-sub-amendments and deferring votes on these measures.

Under the current Rules, the problem is that sub-amendments may be moved and debated virtually ad infinitum. Even with the support of a large majority of senators, a bill may never reach a vote once we are into this procedural spin cycle. In the end, the bill’s sponsor, Senator Lankin, was able to trigger a vote only through an innovative procedural mechanism that was within the Rules, but is not an ideal model for the regular conduct of business because the mechanism lacks certainty and can be seen as something of a last resort.

As a second example, our former colleague Senator Willie Moore proposed Bill S-203 to phase out the captivity of whales and dolphins for entertainment purposes. This commenced the longest process to pass a bill in Canadian history. Senate proceedings on this bill lasted for nearly three years, taking 34 months to reach a vote. By comparison, House of Commons proceedings on Bill S-203 lasted for eight months. In the Senate, the timeframe was due to repeated adjournments of debate, albeit with little actual debate. Report stage alone lasted six months, whereas those debates typically conclude within days or at most weeks.

Third, we had Bill C-337, a unanimously adopted House of Commons initiative from the Honourable Rona Ambrose, the former Leader of the Opposition. This legislation proposed to require judicial training in relation to sexual assault. This bill spent over two years in the Senate, including over a year at committee.

In the end, Bill C-337 received neither third reading debate nor a vote. This is because repeated one-hour standing votes, combined with two-hour dinner breaks, protracted Senate proceedings until midnight, when the Senate had to adjourn. Senators were therefore unable to debate or vote on any item of non-government business that appeared later on the Order Paper. Two motions to bring the item forward were blocked.

Four, the former Member of Parliament Romeo Saganash advanced Bill C-262, requiring an action plan for federal laws to be harmonized with the United Nations Declaration on the Rights of Indigenous Peoples. Bill C-262 did not receive third reading debate, nor a vote. That legislation was affected by the same dynamic as Bill C-337 despite a unanimous motion from the house calling on the Senate to vote on both bills immediately.

Five, our former colleague Senator Nancy Greene Raine advanced Bill S-228 to restrict how food and beverages may be advertised to children. I was looking forward to the day that M&Ms could stop talking to my grandson and to me, but that is not to be.

Originally, the Senate voted unanimously to pass this legislation. The house subsequently amended the bill to make it slightly less strict. At that point, the Senate considered a motion to accept the changes outlined in the message from the House of Commons. That motion was before us for nine months. Eight months in, senators opposed to the bill moved an amendment and a sub-amendment to put Bill S-228 back into the spin cycle from whence none return.

As I noted, the Senate did not vote on 15 bills from the House of Commons. These bills embodied years of work and dealt with important subjects, including organ donation, community benefits in federal contracts, maternity assistance, drinking water standards and the Calls to Action of the Truth and Reconciliation Commission.

If we were elected members of Parliament how would we feel about the Senate Rules for private members’ business? Would we think them fair and reasonable?

Senator Dalphond and I are of the opinion that any bill that is sent to the Senate by the House of Commons deserves to have a vote.

In considering this issue, it is important to note that Senate public bills, our version of private members’ bills, are treated fairly under the house rules, coming up for scheduled debates and votes. As a chamber, we have an institutional interest in defending and strengthening reciprocity with the House of Commons.

So how should we change the Rules? We propose the following five changes for your consideration and the input of Canadians and other senators.

First, we would like you to think about the possibility, at second reading and combined report stage and third reading, that we think that Commons private members’ bills be voted on by default after being called on 15 Senate sitting days. In practical terms, the Senate typically sits three days a week but often does not call private members’ bills on Wednesdays. Plus, there are break weeks. So this change would give senators about a maximum of a couple of months to speak to a bill at each of second and third reading.

Of course, the Senate could vote sooner. We are also open to allowing a five-day sitting day extension at both stages, if requested by a senator with reasons and if approved by the Senate.

Second, for all non-government items, including Senate public bills, committee reports and motions, we believe that if an item has been called 15 times and debated for at least two hours, the sponsor, critic or mover of the report should be able to trigger a final debate and a vote. This idea is based loosely on a 2014 proposal of the Conservative Senate caucus, spearheaded by the late former Speaker Senator Pierre Claude Nolin.

Third, we think committees should have time limits for how long they can hold non-government bills so that the legislation is not indefinitely and fatally backlogged. Such a system exists in the house, limiting the time for study to 60 sitting days, with a 30-sitting-day extension available with reasons if approved by the house. In the Senate, we think a reasonable period would be approximately six months. We therefore propose time limits of 40 Senate sitting days with a possible extension of 10 sitting days, with reasons, if approved. If this limit is exceeded, a bill would come back to the Senate unamended.

Fourth, we wish to look at the reinstatement of private members bills and Senate public bills. Currently, if Parliament prorogues, the event wipes out progress that private members’ bills have made in the Senate and progress that Senate public bills have made in both chambers. In contrast, the house has a rule that reinstates Commons private members’ bills to their previous stage, with an option to reinstate Senate public bills. Based on a 2009 Conservative proposal, we suggest that the Senate should adopt similar rules.

Fifth is dinner breaks. Currently, the Senate requires unanimous consent not to interrupt a sitting from 6 to 8 p.m. for a dinner break. We think a dinner break can be useful, such as for leadership discussions or an important event, such as eating M&Ms. However, the break can also be used to prevent the Senate and committees from working. We therefore propose that, absent unanimity, the Senate have an immediate vote without bells on whether to break for dinner.

I would like to thank you, senators, for considering these ideas. I look forward to any opportunity you may have to discuss them further. I look forward as well to continuing this conversation and working with you to implement these or similar changes you may have this spring. With that, I will pass the baton to Senator Dalphond.

Hon. Pierre J. Dalphond
[17:20]

Honourable senators, I also rise to make the case for the collaborative initiative that Senator Sinclair has outlined. They say sequels are never as good, but I’ll let you be the judge.

The beginning of a Parliament is the ideal time to make changes to the Rules of the Senate. We don’t know yet what legislative measure could be introduced by members of Parliament or, with some exceptions, by our colleagues here in the Senate.

This situation makes it possible to objectively explore and develop improvements to the Rules of the Senate. The time is all the more propitious as we are at a juncture where bills introduced by parliamentarians, rather than by the government, may play a greater role in this Parliament.

Changes are being made in both the House of Commons and the Senate. Because there is a minority government in the House of Commons, the government party cannot prevent a majority of members from other political parties from introducing and passing bills. Similarly, in a Senate that is more independent than before and that now comprises various groups, it is easier to take legislative initiative outside of the government’s control.

We have a perfect window in time where we may simply ask what is fair and to fix what is not fair. Colleagues, I never thought I would say these words, but I am somewhat excited about Senate procedure and our five proposals.

I would like to return to the main reasons we think it’s necessary to consider changes to these rules about non-government business. As you know, there are two sources of non-government bills, private bills from the House of Commons and bills introduced by members of this house. I will begin with private bills from the House of Commons. In our view, it is the responsibility of the Senate to respect democracy by voting on bills passed by the elected House of Commons.

In 2016, political science Professor Andrew Heard of Simon Fraser University appeared before the Special Senate Committee on Senate Modernization. In his written submissions to the committee, he wrote:

The most problematic aspect of the Senate legislative record lies in its inefficient handling of House of Commons private members’ bills. In comparison to the Senate’s treatment of government bills from the Commons, private members’ bills are far less likely to be considered in detail or to be given third reading.

Professor Heard noted that between 2000 and 2015, the House of Commons sent 107 private bills to the Senate. Of those, 45 per cent died on the Senate Order Paper.

In the last Parliament, as noted by Senator Sinclair, 15 private members’ bills died on the Order Paper.

Let me refer again to Professor Heard:

Clearly, the Senate needs to address its treatment of private members’ bills already approved by the Commons. . . . changes in the House of Commons procedures have created greater opportunities for these bills to pass and to be concerned with more substantial areas of public policy than was the case in previous decades.

For this reason, Senator Sinclair and I propose that specific milestones be included in the Rules once the Senate receives a bill in order to force second reading, report stage and third reading.

Let me now address the second source of non-government business, bills coming from members of this house.

Canadians and senators may have different views on the Senate as an initiator of legislation, given its primary role as an appointed chamber of sober second thought. However, as Senator Harder noted in his policy paper on the Senate’s complementary role, Senate public bills are a proven parliamentary vehicle to address policy gaps. In writing about tenure — some who have much more than me — Senator Harder wrote that length of tenure:

. . . allows senators’ work to continue on a bill over the span of several Parliaments where necessary, affording the time for groundbreaking policy proposals to change hearts and minds. . . . Senators’ long tenure also fosters institutional memory of legislation that may have come close to passage in the past. Further, senators’ appointed status affords them greater institutional liberty to explore policy areas that may not be top of mind for a Member of Parliament . . .

In the last Parliament, 11 Senate public bills were passed, including a bill introduced by Senator Carignan to better protect journalistic sources, a bill that uses the Magnitsky Act to sanction foreign nationals who violate fundamental rights, a bill that makes it easier for pleasure boaters to cross the Canada-U.S. border, as well as a bill, as my colleague mentioned, that put an end to keeping whales and dolphins in captivity.

Two other Senate bills were not adopted, but they prompted the government to take measures to ban the precursor chemicals used in the production of fentanyl and the import of shark fins. However, 25 bills introduced by senators died on the Order Paper. I admire the patience of Senator Pate, who has repeatedly come back to the issue of restoring judicial discretion in matters pertaining to criminal offences and sentencing. This topic is extremely interesting and important. Unfortunately, we were never able to vote on that bill in the last Parliament, which had just one session lasting no less than four years.

That is why Senator Sinclair and I are suggesting that, if a bill’s sponsor wants to trigger a vote, the following two simple conditions must be met at second and third reading: the bill must have been on the Order Paper for 15 sitting days and must have been debated for two hours. We believe that two hours is a reasonable time because it is the maximum time allocated to debates on private members’ bills at each stage in the House of Commons.

Basically, what we are trying to do today is pick up where the late Pierre Claude Nolin left off and try to finish the work that, sadly, he could not. I worked with his father at the Quebec Superior Court, so it is an honour to quote the son. Back in 2014, the subcommittee made up of senators Nolin, Joyal and White suggested that once any item of non-government business had been called 15 times and debated for a minimum length of time, the senator sponsoring the bill could move a motion to begin the final debate and the vote.

This rule would have applied to non-government bills and to motions and committee reports. Much like the other amendments we are proposing to the Rules of the Senate, this amendment will allow senators to vote within a reasonable period of time, which shows respect for the democratic decisions of the House of Commons and for the right of all senators to see the bills they introduce be studied, debated and voted on.

When Senator Nolin proposed this approach, he said the following to the Committee on Rules, Procedures and the Rights of Parliament:

While ensuring that there is ample opportunity for debate, this provision would provide a tool to ensure that if the majority of senators want to reach a decision on an item, they can do so without undue delay.

In my opinion, such amendments would help increase trust between the two chambers and would increase public confidence in the Senate.

The proposal carried at the Rules Committee and proceeded to this chamber. In presenting the report, the chair at the time, our colleague Senator White, noted that mechanisms to trigger votes exist in upper chambers in the United Kingdom, Australia, France and the United States. Senator White continued to describe this idea:

. . . this proposal will actually encourage debate . . . . The sponsor, if he or she is thinking of invoking this process, will want to ensure that senators speak. Similarly, senators who oppose a proposal will have every interest in ensuring that their remarks actually get onto the record in a speech. Speeches will actually get prepared and be given within a reasonable time . . . I am convinced that this proposal will . . . foster public respect for this institution.

Senator Frum also spoke eloquently in support of this message, stating:

When the House of Commons passes a bill and sends it to us to be considered, that is what they expect us to do. It is our role. This proposed rule change will oblige us to do our duty rather than allow us to simply ignore or endlessly defer debate on any proposed legislation that we find challenging.

Senator Sinclair and I agree with Senators Nolin, Joyal, White and Frum that clear rules providing for default votes on private bills from the House of Commons, senators’ public bills, reports of committees or motions all encourage debate and show respect for the proper functioning of our parliamentary institution.

Honourable senators, I will close with a few remarks about the process that we are initiating today. Our hope is that this inquiry is the beginning of a collegial conversation about the suggestions we are proposing today as we work to implement them or similar measures through a motion to be presented later on.

Thank you. Meegwetch.

[17:32]

Would the honourable senator take a question?

Senator Dalphond
[17:32]

Do you mean Senator Sinclair or me?

[17:32]

Either one. Under the Rules, it will have to be you.

One of the interesting things about private members’ bills that come from the House of Commons is what the members do with the bill once they have passed it.

The usual method in the past — and this is an interesting situation that we find ourselves here now with a large group of people who call themselves independent in this place — has always been that contacts would be made with their political allies that they have here in the Senate. Have you analyzed how many of those bills that have died on the Order Paper have been sponsored by members of Parliament who do not have natural allies in this place historically — for example, New Democrats and Bloc Québécois? For bills that were passed, in the case of the Conservatives, in the case of the Liberals, when they had a caucus in this place, they would make contact with their friends.

When I had bills passed here that were sent to the House of Commons, I went to see my friends there. I spoke to them about sponsoring and grabbing the bill to help them get it through the House of Commons.

Did you analyze that aspect of the bills that died on our Order Paper?

The Hon. the Speaker
[17:33]

Senator Dalphond, your time is about to expire. Are you asking for five minutes to answer questions?

Is leave granted, honourable senators?

Senator Dalphond
[17:34]

It will not take me five minutes to answer. Certainly this is a call for action, and that call for action can only be possible if we build bridges with the other side.

For example, I have worked in the past with the Honourable Rona Ambrose regarding the bill that she had introduced in the House of Commons, and in which I had the pleasure and honour to revive at the stage where the Senate was more or less keeping it in abeyance. I was very honoured to work with her to revamp the bill and to stimulate the debate in this place. With Rona Ambrose and Senator Andreychuk, with whom I also worked closely, we came up with a series of proposals to amend the bill. That was finally agreed to at the Legal Committee in this house and with Ms. Ambrose, who said this week in a press conference that this bill, as improved by the Senate, was a good bill.

Yes, it’s possible to work with the other house. Senator Sinclair did it, and many members of the committee did it with NDP member Mr. Romeo Saganash who had proposed and introduced the bill on the UNDRIP principles. So, yes, it’s possible. If we speak to each other, we may open the eyes of some members in the other place, perhaps including some members of the NDP that may see some value in this place.