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S-8 (Speech - Second Reading) - An Act to maintain the principles relating to the role of the Senate as established by the Constitution of Canada.


Second Reading—Debate Adjourned

Hon. Serge Joyal moved the second reading of Bill S-8, to maintain the principles relating to the role of the Senate as established by the Constitution of Canada.—(Honourable Senator Joyal, P.C.).

He said: Honourable senators, the bill that I have the honour to place before you today for debate at second reading is without precedent in our history. Basically, it has two objectives. The first one is to raise awareness of the many instances, especially in recent years, when legislation passed in good faith by Parliament neglected to recognize that the Senate has a role and a status equal to that of the House of Commons. The second one is to remedy this omission by amending these acts so that they recognize the Senate's full status in the Canadian legislative process.

Let us begin with a review of the scale of the problem. Is this just a matter of a few isolated cases or is it, rather, a recurring practice involving a significant number of examples? A review of the statutes has identified 47 acts passed since 1920 that fail to give the Senate a role and status equal to the one of the House of Commons. Of these 47 acts, 20 of them have been inoperative with respect to the provisions of interest to us as senators. This leaves 27 acts that exclude the Senate and prevent it from carrying out its legitimate responsibilities. More important, since the 35th Parliament — that is, in the last seven years, since 1994 — eight bills have been introduced with that kind of clause excluding the Senate. Five were amended in the Senate and the House of Commons, and one was the object of a commitment by the government that the corrective amendment would occur in due course. The proposed bank act died with the end of 36th Parliament and Bill C-20 was adopted without amendment. Bill S- 8 aims to amend the 27 acts still in effect that suggest a difference in status between the two Houses of Parliament.

The act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec secession reference, passed June 30, 2000, is not covered by this bill. Given its exceptional objective — that of empowering the Canadian government to undertake negotiations leading to the dismemberment of the country-it should be the subject of special consideration at the appropriate time. Bill S-8 is therefore an omnibus bill, designed to re-establish the role of the Senate of Canada in 27 acts passed by the Parliament of Canada.

We see no reason to try to determine what Parliament's intentions were when these provisions excluding the Senate were passed. The reasons no doubt varied widely, ranging from simple omission to a conviction that the Senate had no stake in the matter at issue.

Whatever the identified or acknowledged motive, the result is the same: The Senate is deprived of its fundamental role in our bicameral system. What, exactly, is that role? We must go back to the origins of our institution settlement to understand the core of the principles involved. It was obvious from the start of the discussion leading to Confederation that the Canadian Parliament would be bicameral like that of the United Kingdom, which is made up of two chambers or houses acting under the constitutional authority of the sovereign. This fact is evident among other sources in the preamble to our Constitution, which stipulates a Constitution similar in principle to that of the United Kingdom. King, lords and Commons — these are the three distinct components combined that embody the country's sovereignty with each being essential to the full expression of the people. All three are essential parties to any legislation.

Section 91 of the Constitution provides for this:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and Good Government of Canada...

It follows that the agreement and consent of both Houses are equally required. This is the law, and neither House can avoid, omit or delegate to the other the exercise of its duties. The Canadian courts have confirmed this on a number of occasions, most notably when they were required to rule on the scope of referendums on legislatures in 1919. Moreover, former Supreme Court Justice Mr. Willard Estey, testifying before the Standing Senate Committee on Aboriginal Peoples, on March 23, 2000, explained it forcefully:

You have a duty. The Senate has a senior duty to perform. It has to perfect the process of legislation. That duty must clearly entail, on occasion, an amendment or a refusal or an automatic approval. All three are within your power. Not only are they within your power, they are within your duty. You have to scrutinize this thing and see what is good and bad and purify it. That is why you are here. The second house invariably, around the world, is set up as a brake on the first level of legislation, while the executive branch tags along all the way up the ladder.

There we have the heart of the question: Is it proper for the Senate to pass legislation that will allow it to evade its role of reviewing laws passed by the Commons and to avoid acting as the chamber that reviews executive decisions in the system of responsible government equivalent to that of the United Kingdom in 1867? I do not think so. The Senate has a fundamental, compelling part to play in the governmental process, and it has a constitutional duty to do so. It cannot escape its responsibility. If legislation were to be passed without Senate consent and approval, the actions under the bill would be found constitutionally unenforceable, that is, illegal, by the courts.

There is intrinsic reason that obliges the Senate to live up to that responsibility. The sovereignty and will of the Canadian people are expressed through the nation's Parliament. It is essential that both Houses of Parliament give their consent before legislation can be properly sanctioned by the Crown. This requirement is fundamental. It is woven into our country's very nature as a federation.

When the founders of Confederation had to decide on the type of union they were going to form, they opted for a federal union contrary to Sir John A. Macdonald's initial proposal for a unitary government. Canada's linguistic, religious, economic and regional diversity were too rooted for any realistic prospect of submerging them in a single assembly where Ontario would dominate. A federal structure was the only approach to any enduring union.

There is more. In that federal union, it was unthinkable to leave a simple elected House where Ontario would have effective control as the sole expression of the will of all the provinces. "Rep by pop'' automatically gave the last word to the majority represented by the province with the largest population.

That was why the founders opted for a second house representing the regions and giving it equal weight to counterbalance the electoral rule that inevitably meant the dictatorship of the majority. Without a Senate, where the regions' linguistic and religious minorities were protected, there simply would not have been one dominion.

What conclusion should we draw from this essential characteristic of our Parliament?

The Senate, by its very vocation, is the expression and guardian of the interests and voice of regions and minorities. The Supreme Court has recognized this on three separate occasions in the past 20 years. It is a truth that is crucial to our country's constitutional reality. So it is the will of both Houses in our parliamentary system that guarantees democracy for all citizens.

When both majorities, that in the Commons and that in the Senate, join together, they voice our federation's democratic consent. This is how the sovereignty and the will of the Canadian people are expressed through our parliamentary system.

What does this mean in practise when it comes to drawing up legislation and to the democratic supervision which Parliament must exercise over the government? The conclusion is almost self- evident. The Senate's contribution is essential to the expression of the weighted will of all Canadians, whether they live in the most populous provinces or the most sparsely populated regions or territory.

Consequently, when a minister of the Crown makes a commitment to seek only the opinion of the House of Commons, for instance, on a report, as is often the case in the acts covered by omnibus Bill S-8, consideration of its conclusions will be determined by the elected majority concentrated in the provinces with the most people. The minister thus violates the federal principle enshrined in our Parliament. We have a duty to review on an equal footing the same laws and submissions that are submitted to the House of Commons. This is vital if Canadians living in the regions or belonging to minorities are to preserve a voice in the decisions to be made and the directions Canada is to take.

We cannot abdicate this role. It is our duty to carry it out by approving, amending or rejecting any submission placed before this Senate. That is the objective of this omnibus bill. It re- establishes our role in 27 specific cases where the voice of the Senate, that is, the voice of regions and minorities, has been excluded.

The bill has another objective as well — to make the government aware that it cannot ignore the Senate with impunity. The point is not that a few self-important senators want a chance to sound off about everything. The point is that the very nature of our country is based on respect and equality for all, even in the most remote regions.

Our regime is weighted, balanced and fair. The dictatorship of the majority or the will of a single house has never been our way. We have always sought to protect minorities and those whom geography or history has made less influential. Is this not in fact a conception of freedom that sets a very high standard of equality and respect for all? Is this not at the heart of what makes up our Canadian identity and infuses our approach to the institutions of national government?

If we allow this habit of excluding the Senate to persist and these precedents to proliferate, we are endorsing the view that the Senate has no useful role. We are allowing to hang over us a fog of futility that a number of people would like to invoke as justification for imputing the power of this institution or simply abolishing it.

Honourable senators, experience teaches us that sometimes we must be put to the test. That is, we must find ourselves deprived of some physical or material advantage to realize what really matters in the choices we make.

Perhaps the repeated clauses excluding the Senate will make us more aware of our duties and responsibilities and, I hope, convince all honourable senators to support this bill, which has no other aim than to ensure that all Canadians have an equal voice in the government of their country as stipulated by our Constitution.