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Senate's Role in Representing the Regions of the Canadian Federation


Mr. Speaker and honourable colleagues, I would like to begin by thanking my honourable colleague, Senator Nolin, for having launched his inquiry into the Senate of Canada, its purpose, its past and future, and the overarching pursuit of the reform of this place.

The notion of Senate reform has been a preoccupation in this country for more than 20 years. Since 1980, there have been no less than eight major studies on the subject. These have ranged from the Senate's own review undertaken in 1980 by the Standing Senate Committee on Legal and Constitutional Affairs, entitled Report on Certain Aspects of the Canadian Constitution and commonly known as the Lamontagne report. There was the Special Joint Committee of the Senate and the House of Commons on Senate Reform in 1984, known as the Molgat- Cosgrove committee. There was the study by the Canada West Foundation and the Alberta Select Special Committee on Upper House Reform, and the Special Joint Committee on a Renewed Canada, known as the Beaudoin-Dobbie commission. In 1991, there was the Government of Canada's report, Shaping Canada's Future Together: Proposals. There was as well the Royal Commission on the Economic Union and Development Prospects for Canada issued by the Macdonald commission in 1985, and of course there was the Charlottetown Accord of 1992.

We must also be reminded that the tradition of public discourse on Senate reform dates back to at least 1874. In that year, less than a decade after Confederation, the other place heard a proposal that it consider amending the constitution to allow each province to choose senators. The debate has continued since then and, in 1909, the Senate itself first debated reform, when a proposal that terms be limited to seven years and that two thirds of senators be elected was rejected.

While it has been said that "freedom is hammered out on the anvil of discussion, dissent, and debate," one doesn't tamper lightly with a system of governance that has served this nation well for almost 150 years.

Thus far in this debate, we have been reminded through the words of George Brown of the importance of the Senate and its place as perhaps the dealmaker in Confederation. The need to accommodate diversity amongst the first four provinces was accommodated by this agreement. In this compromise, a bicameral system including a lower house with representation by population and an upper house with representation based on regional rather than provincial equality was put in place.

Let's consider, honourable colleagues, how much our diversity has grown in the nearly 150 years since our Dominion was created. From a nation of four provinces and a population of 3.463 million in 1867, we have grown to become a federation of 10 provinces and three territories, with a population of over 35 million people, who live in the second largest country in the world.

Of course, with such population growth and the diversity that comes with it, there is real need to ensure our institutions adapt accordingly. In the case of the Senate of Canada, I believe that we have yet an upper chamber that need not be elected in order to remain effective.

Sir Wilfrid Laurier seemed to agree with this perspective. He said:

Confederation is a compact, made originally by four provinces but adhered to by all the nine provinces who have entered it, and I submit to the judgment of this house and to the best consideration of its members, that this compact should not be lightly altered.

Sir John A. Macdonald echoed this sentiment in Confederation debates when he asserted:

The Senate must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation....

The essence of my position is a simple yet powerful notion: Democracy, while an essential component of good governance, is not necessarily its guarantor.

As former U.S. President Jimmy Carter said, "Governance should be designed as an equalizer." This means that we, as an appointed Senate, are to serve as an intended, purposeful check and balance. I believe our own Fathers of Confederation would agree.

The United Nations Social and Economic Commission for Asia and the Pacific cites eight major characteristics for good governance. It is participatory, consensus-oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive, and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the most vulnerable in society are heard in decision making. It is also responsive to the present and future needs of society.

If this is indeed a template of good governance — and I firmly believe it is — we are serving a noble and productive purpose in this place, colleagues, to the benefit of Canadian society.

Let's look at the perspective of one who has dealt frequently with the Senate and has seen its value firsthand. Mel Cappe was a former deputy minister appointed by Prime Minister Mulroney who went on to serve as Clerk of the Privy Council under Prime Minister Chrétien. In a Globe and Mail editorial published last year, he affirmed his position that an appointed Senate is essential to our democracy. He mused:

As a senior official, it was always easier for me to appear before a committee of the House of Commons than of the Senate. In House committees, the two sides would go at each other making partisan political points while the official witness sat back and watched. Stick to your facts and you could get out of there without even answering questions.

Before a Senate committee, however, you had to really know your stuff. Senators didn't have constituencies to worry about or elections to win.

They could spend their time doing their homework, delving deeply into substance and challenging official witnesses. They probed the estimates, seriously reviewed legislation and considered big strategic policy questions.

Indeed, several were expert in the fields of municipal finance, national security, health care, tax law, business and so on. It was much more difficult for an official.

Senate Committees can be major contributors to the public debate, going beyond party politics and dealing with policy. The Senate Finance Committee used to review estimates of government spending and would truly hold the government to account in a way that makes Question Period seem like a joke.

Colleagues, this is highly illustrative of the type of accountability and check and balance that the Senate of Canada brings to our Parliament.

Mr. Cappe was also emphatic of the value of the people that comprise an appointed Senate. He said:

The people appointed to the Senate were not usually professional politicians. They had actually done something with their lives. They were small business people, senior managers in big business, heads of NGOs or professionals with real-world experience. They were the kind of people who wanted to make a difference and contribute to Canada, without subjecting themselves to the contact sport of elected politics. How to attract such people to public life without making them run for office? Appoint them.

The notion of appointed versus elected bodies is not uncommon. Consider that the members of the cabinet of the United States — perhaps the most powerful body in the free world — are all appointed. They are nominated to their positions by the president and presented to the United States Senate for confirmation or rejection by a simple majority. Yet, conversely, in America, judges, sheriffs and the like are often elected.

Last year, the American Constitution Society for Law and Policy, the long-time progressive advocacy group, released the results of a landmark study on the effect of campaign contributions on judicial behaviour. The statistics confirmed what former Supreme Court Justice Sandra Day O'Connor and countless other observers had long contended: judicial elections impair the fair administration of justice by fostering impermissible appearances of impartiality by judicial candidates and judges. In seeking votes and acting like politicians, judges invariably lose what they ought to prize most: their perceived credibility as neutral arbiters of cases and controversies.

Compare that to how we select judges in Canada. The Prime Minister appoints them, in consultation with the legal communities in the various provinces where the nominations of competent, well-known and accomplished people have been compiled.

Gordon Gibson, columnist and Senior Fellow in Canadian Studies at The Fraser Institute, recently suggested that senators could be selected in the same way. Provincial nominating bodies could be made up of members chosen by the governing and opposition parties in the local legislatures, by the municipalities, the bar, universities and perhaps a few others. As with court nominations, their efforts could be private and undertaken only for the eyes of the prime minister.

With regard to the views of a former prime minister, only recently in a media interview Brian Mulroney suggested that his idea for Senate reform from the proposed Meech Lake Accord could be implemented to improve the appointment process. Under the Meech proposal, a provincial government would submit a list of nominees for Senate appointments and the prime minister would pick from that list. Mr. Mulroney believes the change would lead to a strong Senate. He also asserts it would bear democratic legitimacy because provincially elected politicians are involved in the process. All of this is grist for the mill — good fodder for constructive debate.

Moreover, we must acknowledge the calls for total abolition of the Senate.

Another bicameral legislature, the Senate of Ireland, sought abolition of its upper chamber for reasons of cost, lack of power, superfluity, a desire to reduce the number of politicians and lack of democratic election. Much like the dialogue here in Canada, there had been numerous official reports published on Senate reform over the years. Those against the proposed abolition contended that there was a mandate for Senate reform; that the process of legislation needed greater scrutiny; that most Westminster-system countries have bicameral legislatures; and, most important, that the Irish financial crisis showed a need for greater governance. Ultimately, in an October 2013 referendum with results very similar to those of the 1995 referendum in Quebec, the plans for Senate abolition were rejected by 51.7 per cent of the population.

So then, honourable colleagues, what is the way forward?

First, we must acknowledge a number of important things. We are accountable and transparent to our caucuses and to the regions by which we represent Canadians. The extent of our proactive disclosure in respect of finances for this place far exceeds that of the other place. Indeed, it should set the standard for all parliamentarians.

Second, we need to improve communication with Canadians in order to enhance their understanding and perception of what we do as well as how we contribute to good governance. We act as a safeguard in the Canadian Parliament.

If there is to be meaningful engagement with Canadians and a fruitful dialogue with them about the future of the Senate, we cannot leave informing citizens to political sound bites provided by the press.

Third, our committee endeavours and the reports that flow from them are of great value, but they are poorly presented to the public and thus often fall beneath the public radar, failing to gain the attention of the media, civil society and Canadians at large.

I find it extremely disappointing that we have missed so many opportunities to shine a light on the Senate's meaningful work, which is rooted in the implementation of committee recommendations.

The examples are numerous: the Standing Senate Committee on Social Affairs, Science and Technology's 2009 report, A Healthy, Productive Canada: A Determinant of Health Approach; the Standing Senate Committee on Agriculture and Forestry's 2011 report, The Canadian Forest Sector: A Future based on Innovation; and the Standing Senate Committee on Human Rights' 2011 report, Cyberbullying Hurts: Respect for Rights in the Digital Age.

Each of these studies was groundbreaking, informative and progressive in respect of their observations and recommendations.

We need to do more with them. We need to promote their value and their potential to help improve Canadian society.

Honourable colleagues, this must change.

Fourth, we must strive to remain true to our mandate and purposefully choose to override partisanship. As Sir John A. Macdonald emphasized in 1865 about the Senate:

It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch... but it will never set itself in opposition against the deliberate and understood wishes of the people."

We should not, must not, and cannot allow ourselves to become a rubber stamp of the House of Commons. We've seen the tacit indignation that can arise when, as a chamber, we choose to exercise our prerogative and push back proposed legislation.

We saw it first-hand last year with respect to our deliberations around Bill C-377, a private member's bill about union transparency. The other place had reported and passed the bill without amendment. However, our study of its provisions concluded that there were serious concerns over the constitutional validity of the proposed legislation both with respect to the division of powers and the Charter. Other issues raised include the protection of personal information, the cost and need for greater transparency, and the vagueness as to whom this legislation would apply.

In light of those concerns and the consideration they were given here in this place, we did not pass the legislation. It was sent back to the other chamber, and rightfully so.

We saw it again with Bill C-314, a private member's bill around the screening of women with dense breast tissue, which, while a well-intentioned piece of proposed legislation, was literally hurried through the other place with little study. Our approach saw us undertake numerous hearings that, on the basis of expert witness testimony, enabled us to conclude that enacting such legislation would have meant bringing undue harm to women. This is the value of the Senate as a check and balance; this is the intentional outcome of undertaking sober second thought.

While Triple-E might be a catchy slogan, it by no means mirrors the challenges Canada faces respecting geography and demography or ensuring that the content and application of our laws remain as noble and appropriately protective of rights and personal safety as they should be. The reality is that Triple-E is not good or thoughtful public policy.

Colleagues, we can indeed be the bulwark of the Canadian people, particularly in the face of large majority governments in the other place. We can focus on the unique and fundamentally distinctive differences and needs of our nation's diverse regions — yet do so with a longer-term view of the net benefit to Canada as the sum of its parts, and not just as a "community of communities."

Lastly, we cannot speak of reform in this place without acknowledging the recent incidences of infamy on the part of a scant few of our colleagues. They have brought true dishonour to this place and to the esteem in which it was once held.

Faced with criticisms of his own team, Prime Minister Macdonald once said, "Give me better wood and I will make you a better cabinet." Colleagues, I contend there's little wrong in any way with the quality of the timber in this place.

The misdeeds of only five senators in a period of nearly 150 years cannot be permitted to reflect upon — nor at all diminish — the very significant contributions made by the overwhelming majority of honourable senators since Confederation.

One thing is certain: Change of some kind will come to this place.

What we must now decide is whether we choose to be the architects of such change, or rather will we allow ourselves to become merely afflicted by its onset?

President Dwight D. Eisenhower wrote, "Neither a wise man nor a brave man lies down on the tracks of history to wait for the train of the future to run over him."

An appointed Senate works and can indeed flourish, providing we continue to act in the spirit of rendering independent and carefully considered study, while thoughtfully serving as the check and balance we were created to be nearly a century and a half ago.

Thank you.