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Senate Modernization - Tenth Report of Special Committee—Debate Continued


On the Order:

Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Cordy, for the adoption of the tenth report (interim) of the Special Senate Committee on Senate Modernization, entitled Senate Modernization: Moving Forward (Nature), presented in the Senate on October 26, 2016.

Hon. Serge Joyal: Honourable senators, I will continue the address that I started a while ago. Considering that I sought the adjournment, and according to the Rules of the Senate, we can't seek the adjournment twice, today I am bound to complete my presentation.

I will certainly remind honourable senators that the issue of the tenth report is in relation to the consideration that the Special Committee on Modernization brought forward, asking the Committee on Rules, Procedures and the Rights of Parliament to review the Rules of the Senate, the administrative rules, and the practice of the Senate so that those rules better reflect the constitutional role of the Senate and the constitutional duty of each and every senator. But of course to review the rules, you have to have a certain number of objectives if you want to be able to conclude, on the analysis of those various rules that are in our books, in the standing rules, in the administrative rules, and in the practice of the Senate. So then the first question is: What is the role of the Senate? What is the role of a senator?

Honourable senators, we have had the benefit, contrary to the other place, of having the wisdom of the Supreme Court of Canada two times in the last 30 years. We had it following a Senate reference in 1980, and I had to remind myself that I was part of the discussion in those days in the other place that led to that reference. Because the government of the day introduced Bill C-60, and that was intended to totally revamp the institution; hence, the opposition of the provinces and of some of the constitutional lawyers that, in order to do that, the Parliament of Canada had to get the support of the provinces.

There was a very animated debate at the Legal and Constitutional Affairs Committee in 1979, and the government of the day decided to refer the issue to the Supreme Court. We got the first ruling of the Supreme Court in 1980.

What did the Supreme Court say about the Senate in relation to the Commons in 1980? Because that was essentially the issue: What is the role of the Senate in comparison with the role of the House of Commons, since those two chambers make up Parliament? In fact, if you read section 17 of our Constitution, section 17 is pretty clear. It states:

There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

So we are part of Parliament as much as the House of Commons.

In fact, if you read section 95 of the Constitution that calls upon the legislative authority of the Parliament of Canada. I quote section 91:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons . . . .

In other words, our advice and consent is as valid and as necessary to enact legislation as the House of Commons. We are a legislative chamber and a bicameral Parliament, enjoying exactly the same role and power in relation to legislation.

But do we have additional different characteristics? The answer is yes, again referring to the ruling of the Supreme Court of Canada in 1980. What is the essential characteristic that we enjoy as a chamber of Parliament that the other place doesn't? Well, it's very simple. We are the house of Parliament that embodies the federal principle.

You will remember that the Fathers of Confederation, now in the more feminist tone, "the framers," originally had to wrestle with this issue of how to reconcile the weight of an elected majority, that in 1867 lies in Ontario, with the lesser weight of smaller regions, i.e., New Brunswick, Nova Scotia; different linguistically and religiously, Quebec. How can you reconcile the weight of the majority Protestant in Ontario with the linguistic characteristics that are different in Quebec, and of course the different economic weight in the two Maritime provinces?

I open a parenthesis: By the way, Prince Edward Island was not part of the original deal; they refused to join Confederation. Prince Edward Island was not on the original flag, like the four other provinces were. Prince Edward Island was not on the original medal of 1867.

I know there is a bill about the birthplace of Confederation being studied, but I respectfully submit, Prince Edward Island was not among the original framers that led to the British North America Act, 1867. We might want to reflect on the role of Prince Edward Island, but we have to be historically correct when we want to recognize that. I say that with the greatest respect for Senator Hubley, our friend Senator Downe and the new senator from Prince Edward Island. I was not in the chamber. I was caught outside when that bill was debated. There will be another opportunity, but I will close the parenthesis.

In other words, when the framers originally had to wrestle with that idea of creating a united country with an elected majority, and provinces with different economical and financial weight, and provinces with different linguistic and religious characteristics, they thought and concluded that the only way to come to terms with that was to have a house divided proportionately in the Senate among the three regions, recognizing that there would be a representative of the Protestant minorities in Quebec in the chamber, with seats that were specifically allotted to maintain the rights of those minorities to drive within their identity. They thought the only chamber in Parliament that could represent and speak on behalf of the regions and the linguistic and religious minorities of the day was to create the Senate the way we have it.

We are very different from the other place, not only because we are not elected and they are, but because we are appointed, and we are appointed differently. We are appointed through a Royal Commission. In other words, we don't owe a democratic mandate. We owe a commission from the prerogative of the sovereign, represented in those days by Queen Victoria through the Governor General of Canada on the recommendation of the Prime Minister. But if we are a chamber structured differently with the same legislative power, how can we reconcile the use of that power with the democratic will of the other place? In other words, how can we use our powers?

The question is simply this: What are those powers? Well, those powers are simple. We have the power to, as they say, advise and consent. So when you consent, you say "yes," which is to approve, or you could say "no," to disapprove. If you say "no," at the limit, it could mean a veto. It could mean the bill falls or dies. It has happened, and I'll explain later how many times and for which purpose.

If we have the power to approve or say "no," we also have the power to negotiate. Because before saying "no," we can express the will that if a bill could be amended in such a way or if a minister of the Crown can commit himself or herself to bringing amendments, or if a minister can commit himself or herself to bringing forward a policy that would answer a specific need, then we have the power to obtain results.

The power to say "no" has, as a corollary, a power to negotiate. We've seen it in the last six months. We have exercised the power to say "yes" to some bills. I see the opposition, Senator Marshall, nodding. When we say "yes" to some budget bills, the opposition, who had the larger numbers at that time, could have said "no," but they said "yes," and they made that political decision for specific reasons.

Then we have the power to say "no" to a bill. When the bill contains some provisions in relation to the protection of consumers, we signal that we would say "no." Hence, what happened is the power to negotiate. If you don't have the power to say "no," you don't have the power to negotiate and you don't have the power to improve the bill. So all those who say that we should always yield to the elected will of the majority, it would mean that we would lose our power to negotiate.

And then we have a power to delay, which is a very effective power. In fact, in the previous Parliament, many of my colleagues will remember the sports betting bill. I see some senators nodding. What did we do with that bill? We didn't vote "yes" at third reading, we didn't vote "no" at third reading and we didn't negotiate amendments at any reading. We just remained sitting on our bottoms and the bill failed. We didn't vote against it; we just had to delay it. When called on the Order Paper, we said "no" on both sides — I look at my friend Senator Mockler — and there was nobody on any side who wanted to debate the bill. So the bill remained on the Order Paper and at the end of the session the bill failed.

Honourable senators, the power to delay is a very effective power. Before we consider redefining the power of the Senate, we should be exercising our wisdom to realize how the power of the Senate can be exercised for the specific objective of protecting the regional interests for which we have a specific mandate, to protect linguistic minorities and the other minorities.

The Supreme Court, in its ruling in 2014, said very clearly, through the years, the role of the Senate to protect ethnic minorities, linguistic minorities, Aboriginal people, racial minorities, sexual minorities, any minorities, expanded. The court wisely recognized that in exercising our powers today it is in the context of our constitutional duty to speak for those minorities. And why do we have that specific role? Because in the other place they work on the simple rule that the majority takes all. You know those games; you have more cards, you win. You don't win on the basis of the aces or the king; you win on the basis of the number of cards you hold.

Two more minutes, honourable senators?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Joyal: In other words, honourable senators, I want you to reflect on those because we are in the process of modernization. We are in the process of making sure our chamber exercises its judgment on a more independent basis. But we should not forget that in bringing our chamber into a more independent context of deliberation we would challenge our power. I have heard from some, "Oh, the Senate will become more independent. But of course they will not use their power. Of course they will not oppose the will of the elected majority in the other place." Well, if we are ready to accept that, we fail our constitutional duties to uphold the interests of the regions and the minorities for which we were appointed in this chamber and for which we're called by the Constitution to stand up for. It doesn't mean that after negotiation, after having obtained what we think is a proper compromise, we cannot yield, as we will do on Bill C-6 in relation to the appeal for the revocation of citizenship, as Senator Eggleton and Senator McCoy presented in this chamber. But because we can say no, we can have and we can obtain through negotiations and fair compromise improvement of legislation. But the day we will say no to our veto, to our capacity to say no, we will have lost our power to really negotiate. So think twice about those who tell you because we are more independent we won't use our power to veto or to refuse legislation.

Honourable senators, let me give you a last example. I know I have no more time than for that, and Senator Andreychuk is reminding me of the clock.

I hope you have read in the paper over the weekend that the Minister of Health of Quebec has decided to make a reference to the Court of Appeal of Quebec in relation to medical assistance in dying. It's not long ago that we were debating an amendment in this chamber to ask the government to refer the issue to the Supreme Court. Now, of course, we would be involved in a two- step approach. There will be a decision of the Court of Appeal of Quebec in reference to interpreting the concept of reasonable, foreseeable death; and then, of course, the party that will feel that the decision is not in relation to their position will appeal to the other place. If we had insisted in our amendments to refer that clause of the bill to the Supreme Court of Canada, we would have had a result that would have benefit at the end to Canadians.

To give you an example, when we take a stand in this chamber on an issue that pertains to minority rights, the rights of a person who suffers a grievous and irremediable condition, is in terrible pain, is able to give consent and is an adult, according to my reading that person has a right to medical assistance in dying. We decided, as a majority, to postpone the decision in relation to that. As I say to you, we have the capacity to negotiate. Hence, my suggestion to the chamber is to review 16-3 of our standing Rules of the Senate to better define the context in which we could negotiate resolutions of deadlock with the other place when we want to exercise our full power to have better legislation.

I commend to you, honourable senators, the tenth report, with one minor amendment.

Motion in Amendment

Hon. Serge Joyal: Therefore, honourable senators, I move that:

The report be amended by replacing the words "direct the Committee" by the words "invite the Committee".

This amendment to change the words that state that the Senate "directs" the Committee on Rules, Procedures and the Rights of Parliament to the Senate "invites" the Committee on Rules, Procedures and the Rights of Parliament bring it in sync with the other recommendation so we don't instruct a committee but we invite a committee. It's merely a technical practice of the committees to invite other committees to study issues.

With that, honourable senators, I seek your concurrence that we be able to amend the text of the tenth report. Thank you, honourable senators.

The Hon. the Speaker: Senator Joyal, are you moving an amendment?

Senator Joyal: I have moved the tenth report. I would be amending my own proposal. I would have to seek concurrence of the chamber to do that, so that it is done in that way.

I don't want to read the will of the chamber for you, but I see a consensus in the chamber.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

(Motion in amendment agreed to.)

(On motion of Senator Carignan, debate adjourned.)