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Letter sent by Senator Joyal to the Auditor General Michael Ferguson regarding the status and functions of a Senator

 

Michael Ferguson

Auditor General of Canada

Office of the Auditor General of Canada

240 Sparks St.

Ottawa, ON

K1A 0G6

 

Wednesday, December 18, 2013

Dear Mr. Ferguson:

I have received your letter of November 12 explaining that the Senate has mandated an audit by you of expenditures made by the Senate and its members.

You and the members of your team will be given all the documents at my disposal so that you can perform this audit in accordance with the powers and duties granted to you as an Officer of Parliament under the Auditor General Act.

My assistants will be available to work with you in collecting the necessary information.  In addition, I will authorize the appropriate services of the Senate to furnish you with any material they may have related to expenses incurred by my office in the performance of my duties as a senator. All of this this will be done with due regard for the proper protection usually afforded by law to a parliamentarian and any ordinary citizen.

Equally, I fully intend to maintain the confidentiality of the protected documents sent to me for review and will return them to you once the audit is completed, as requested.

 It is appropriate to point out that the legal status of a parliamentarian, including senators, is different from that of a public servant.

The Senate Administrative Rules clearly state at Chapter 1:03 that:

 The following principles of parliamentary life apply in the administration of the Senate:

 (a)     a Senator has the constitutional rights, immunities and independence applicable to that office and the carrying out of the Senator’s parliamentary functions, free from interference or intimidation;

The Audit Plan Summary that I received, dated October 29, 2013, refers to the “role” of a senator, and explains that senators have a role in public policy issues in addition to their legislative work.

I believe this definition is too restrictive because it overlooks the other responsibilities that senators have by virtue of their right to sit in the Senate, one of the two Houses of Parliament. Senators are also representatives of the region (or a specific senatorial district in the case of Quebec) and province they come from. In this representational role, senators receive numerous requests to get involved in many different issues and initiatives. Aside from participating in public activities organized by the political parties represented in the Senate, senators are involved to varying degrees in parliamentary associations recognized and supported by the Senate and they are also expected by the public to support matters of public interest given their professional credibility, experience and specific expertise in a given field.

Restricting their role to legislative work or the study of public policy is far less than what the public is entitled to expect from their senators.

 Individual senators decide how they will assume their responsibilities; it is up to them to determine, depending on the circumstances, how they will fulfil their duties as a representative, which in fact is an integral aspect of legislative work and the study of public policy.

Senators have an important responsibility to represent the interests of their respective regions and of various minorities. This responsibility is recognized in the Constitution Act, 1867, and the Constitution Act, 1982, as well as in the Conflict of Interest Code for Senators and the Senate Administrative Rules. This was also confirmed in two recent Supreme Court of Canada decisions (Re: Authority of Parliament in relation to the Upper House, [1980], and Reference re Secession of Quebec, [1998], paragraphs 81/83) and in a recent decision by the Quebec Court of Appeal (Renvoi sur un projet de loi fédéral relatif au Sénat, October 24, 2013).

According to s. 23(5) of the Constitution Act, 1867, a senator “shall be resident in the Province for which he is appointed”, and s. 31.(5) states that the “Place of a Senator shall become vacant” if “he ceases to be qualified in respect of … Residence”. There is no equivalent provision for members of the House of Commons, who are not legally required to reside in the riding or province that they represent.

Requiring senators to actually reside in the region they represent emphasizes the close relationship that was intended from the beginning between the senator, and the population of the community. During the Confederation debates, John A. Macdonald confirmed this relationship in a speech delivered February 6, 1865.

The members of the upper house will be like those of the lower, men of the people, and from the people. The man put into the upper house is as much a man of the people the day after as the day before his elevation. Springing from the people, and one of them, he takes his seat in the council with all the sympathies and feelings of a man of the people, and when he returns home, at the end of the session, he mingles with them on equal terms and is influenced by the same feelings and associations, and events, as those which affect the mass around him.

 Janet Ajzenstat, Professor Emeritus of Public Law and Political Philosophy at McMaster University, addressed this statement in her book Canada’s Founding Debates (2004, University of Toronto Press, p. 82):

Although the senators he [John A. Macdonald] describes will not be chosen directly by the people, they are, nevertheless, representatives of the people; they are not an extraordinary, permanent class of law-makers, and they must periodically ‘return home,’ to live under the laws they promulgate.

This role as a representative—of the interests of the population where the senator resides–is directly related to the Senate’s role of protecting provincial interests and, more specifically, the rights of the people residing in the various provinces as well as the rights of minorities.

In 1914, Sir George W. Ross (Premier of Ontario, Member of the House of Commons and Leader in the Senate) wrote that this representative  role is emphasized by the way  Quebec senators are allocated districts so that Protestants and Catholics, and francophone and anglophone Canadians would feel fully protected in at least one of the houses of Parliament.

 The matter of Quebec electoral districts is set out in ss. 23(5) and 23(6) of the Constitution Act, 1867:

 23. The Qualification of a Senator shall be as follows:

 (5) He shall be resident in the Province for which he is appointed:

 (6) In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

It is hard to imagine how senators could voice the interests of the region in which they must reside and defend the interests of the people living there without truly performing the role of a representative. These two roles are symbiotic, as stated by constitutional law professor John McEvoy when speaking before the Standing Senate Committee on Legal and Constitutional Affairs on March 22, 2007:

 A regional representative is not only to represent the views of that particular region in a single role, but in all of its roles…They are symbiotic.

David E. Smith, Professor Emeritus of Political Science at the University of Saskatchewan, clearly explained a senator’s representative role in 2003, when the government withdrew a bill to redistribute seats in the House of Commons in the face of Senate opposition. In his book, The Canadian Senate in Bicameral Perspective, Professor Smith described the characteristics of the Senate that ensure its independence and went on to state the following:

 Those qualities were necessary if the Senate was to perform its major task – that is, to afford adequate protection to minorities. In the debate, which extended over two sessions because the government withdrew the initial bill in the face of Senate opposition, the minorities mentioned included French-speakers in Canada, English-speakers in Quebec, Irish Catholics and Protestants in Quebec, Roman Catholics elsewhere, Prince Edward Island, and small provinces generally (p. 73).

Many senators felt motivated to oppose the government’s bill because of their representative role. In other words, their role as legislators was dictated by their role as representatives of minority interests and by the relationship they have forged with minorities in order to voice their opinions in the legislative process.

Describing the role of senators, Professor Smith explained that representation “is only part of what the Senate does” (p. 87). While representing regional and minority interests is only one of their roles, it is a significant part of the mandate that senators have been carrying out for quite some time in accordance to the Constitution, as mentioned earlier.

More recently, Brian Lee Crowley of the Macdonald-Laurier Institute wrote as follows:

 For national decision-making to be legitimate in a federation the virtually universal rule is that you need something more than the assent of the majority of individuals; you also need the assent of some important share of the communities that make up the country. The interests of the people who inhabit the provinces or states cannot be fully represented by representation by population (“rep-by-pop”) alone. (November 2013)

Representing minority communities has long been considered an important duty  of a senator. In the 1980s and 1990s, Senator Stanley Haidasz, a former MP and former Cabinet minister, represented the interests of Canada’s Polish community in Parliament. In the 1990s and the first decade of 2000, Senator Thelma Chalifoux, the first Métis senator, staunchly defended the interests of Aboriginal communities in her home province of Alberta and throughout Canada. Currently, Senator Yonah Martin is the spokesperson for the Canadian-Korean community, and senators Claudette Tardif, Maria Chaput, Rose-May Poirier and Marie Charette-Poulin represent francophone minority communities in Alberta, Manitoba, New Brunswick and Ontario, respectively. These are only a few of many examples.

Professor Smith highlights the national dimension of a senator’s work. However, “This last characteristic does not mean they are inured to sectional or minority concerns – on the contrary, the constitution enjoins them to protect these interests – but that they place these interests in a national context” (p. 111).

The reality of this representative role is reflected in the Senate’s internal rules. Subsection 2.(1) of the Conflict of Interest Code for Senators states as follows:

 2. (1) Given that service in Parliament is a public trust, the Senate recognizes and declares that Senators are expected

 (a) to remain members of their communities and regions and to continue their activities in those communities and regions while serving the public interest and those they represent to the best of their abilities.

Section 4 of the Code states as follows:

 Assisting the public

 4. Senators are encouraged to continue to assist members of the public as long as their actions are consistent with their obligations under this Code.

It is up to individual senators to decide how they will carry out this responsibility, based on their training and work experience, community involvement, and requests from the public or various communities.

The Senate Administrative Rules recognize senators’ legitimate and essential role as representatives. The following definitions are provided in the section of the Rules entitled “Interpretation”:

 “public business” means all business carried on by a Senator for public purposes, whether or not authorized by the Senate or the Government of Canada, and includes official business, representative business, partisan business and related travel, but does not include attending to one’s private concerns.

 “parliamentary functions” means duties and activities related to the position of senator, wherever performed, and includes public and official business and partisan matters, but does not include activities related to

 (a) the election of a member of the House of Commons during an election under the Canada Elections Act; or

 (b) the private business interests of a Senator or a member of a Senator’s family or household.

Section 2.1.1 of the Senators’ Travel Policy also encourages senators to be involved not only in their region but elsewhere in Canada and abroad in order to represent the country’s interests:

2.1.1 … Parliamentary functions are also carried out in senators’ regions and, from time-to-time, senators may be required to travel to other locations, both within Canada and internationally, in the service of the Senate.

The many regulatory provisions in force in the Senate, which recognize the various facets of a senator’s role, support the conclusion that an audit of a senator’s parliamentary activities and related expenditures cannot be limited to legislative scrutiny and public policy work, as this would ignore the much broader public reality in which senators carry out their role, a role that each senator is called on to play in an independent, individual and responsible manner.

Auditing senators’ expenditures from the limited perspective of their legislative work and their study of policy issues means that public activities would be overlooked even though they are essential to their legitimate role as representatives, a role that is clearly set out in the Constitution and directly supported by various Senate rules.

As a result, I believe that the legal basis for the role of a senator, as set out in the protected documents sent by your office, is incomplete and could lead to misinterpretation, making it impossible to fully realize the proposed audit of expenditures by the Senate and its members. I think it would be beneficial to review the legal basis, taking into account the essential components of representation described previously and supported in the rules and legislation cited.

Please feel free to contact me or have any of your staff do so if I may contribute in any way to the successful conclusion of this audit.

Sincerely,

 The Hon. Serge Joyal, P.C.

 cc:          The Hon. Claude Carignan, P.C., Leader of the Government in the Senate

The Hon. Jim Cowan, Leader of the Opposition in the Senate

The Hon. Noël Kinsella, Chair, Senate Internal Economy Committee

The Hon. George Furey, Deputy Chair

Gary O’Brien, Clerk of the Senate