Inquiry Proposing Model for an Elected Senate


The speech below, given December 14, 2006 is extracted directly from the Hansard.

Hon. Daniel Hays (Leader of the Opposition) rose, pursuant to notice of December 13, 2006:

That he will call the attention of the Senate to the issue of developing a model for a modern elected Senate, a matter raised in the First Report of the Special Senate Committee on Senate Reform.

He said: This is an inquiry that I believe is timely and relevant, since two other matters concerning Senate reform are currently before this chamber in addition to what I wish to speak about, and that is the idea of an elected Senate or, more precisely, what a modern Senate would look like or what elements it would have in terms of the kind of thing we should have in mind, particularly when we consider steps towards the objective of something that has not yet been fully described.

Any attempt to develop a framework for an elected Senate should begin with mention of the primary reason why such an institutional change is a timely proposition. A desire for inclusion is how I would qualify the motivation underlying proposals for electing the Senate. As an Albertan, I am aware that Canadians from the Western provinces and the Atlantic region often feel like observers to the national decision-making process. The reason for this has to do with the very nature and structure of our government, which allows central Canada, whose population is far greater, to have a stronger voice in our national institutions.

As an aside, I will be talking about the objective of a fully elected Senate with the other elements that should accompany it, but I do acknowledge that there are good arguments for an appointed Senate using a different methodology than the one we have been using since 1867. For instance, some of the studies done here have rejected election: The 1972 Molgat-McGuigan report; the Government of British Columbia in 1978; and in 1979, the Pepin-Robarts Task Force, have all argued for an appointed Senate, while elected status has been at the centre of the 1985 Alberta Select Committee, the 1984 Molgat-Cosgrove Report, the 1985 MacDonald Commission and the 1992 Beaudoin-Dobbie Report.

This desire to return to the main point, this desire for inclusion and the means for achieving it were eloquently spelled out in the 1992 report of the Special Joint Committee on the Renewal of Canada, which said:

Neither Western nor Atlantic Canadians want out of Canada. They both want in. We must equip ourselves with the instruments of federalism possessed by every other successful federation to give the people of Canada's regions a real voice and influence in the national political life of our country, counterbalancing in fair and appropriate ways the weight that central Canadians now enjoy through representation by population.

(1750)

One of the best ways to bring Canadians from outlying regions and provinces into the mainstream of our national life and institutions, in the view of many, would be through taking the necessary steps to ensure the election and greater democratic reinforcement of our Senate. This process, I would argue, can only be achieved in a lasting and equitable fashion through broad negotiations with all the interested parties that should be involved in such a decision.

Colleagues, I will not try to convince you that having an elected Senate would solve all of our problems, because it would not. What it would more likely achieve, however, is to give greater weight to the views and concerns of Canadians from outlying regions. I this regard, I must commend Senators Murray and Austin for having initiated a process by moving a motion that addresses this issue in a true Canadian spirit of fairness, openness and compromise.

[Translation]

I want to mention the speech Senator Murray gave yesterday on this matter. In my opinion, those of you who may have missed it should take the time to read it and enjoy it. This is one of the best speeches I have ever heard on this issue.

[English]

Although the purpose of this inquiry is to discuss the development of a model or framework for a modern Canadian Senate, Bill C-43, which was given first reading yesterday, cannot pass without comment, since it attempts to fulfill a promise made by the Prime Minister during the last election campaign.

According to the government, Bill C-43 builds on commitments it made during the last election to "make the Senate an effective, independent, and democratically elected body that equitably represents all regions." The bill, however, does not fulfill that promise. For those of us who have examined the bill, it gives the Senate a process of consultation. It leaves me confused as to whether that can be taken as "election," as is held out by many who believe in the bill, or whether it is not, as it must not be if the bill is to be passed and come into force without the necessary constitutional approval involving the provinces.

The so-called elections provided for in the bill, as consultative, are not binding. As the government's backgrounder says, "the appointment process remains the same."

[Translation]

This means the government would consult the public on who should be appointed. This will generally occur during federal elections to enhance the appearance of democratic legitimacy.

[English]

Honourable senators, I question whether this is a valuable change to our structure of governance. We will get to the bottom of it in due course, but it can be regarded as tinkering in the form of a non-binding referendum.

It is, moreover, evading a duty and responsibility to engage the provinces and all Canadians in the process of institutional reform. As well, it runs the risk of thwarting further meaningful reform, which is to say that with "consultation senators" will not be reluctant to flex the muscle of their new-found legitimacy by resisting changes that do not suit their views or agenda.

In examining Bill C-43, it is important to consider whether the changes it makes might lead to a constitutional challenge. I remind honourable senators that section 42(1)(b) of the Constitution Act, 1982, stipulates that the method of selecting senators can only be changed by Parliament if it has the support of seven provinces representing two thirds of the population.

Although the bill does not mention that senators will gain office through election, its spirit is clearly to move in that direction to achieve non-constitutionally what it lacks the vision, energy and resolve to do constitutionally. It is a well-established principle of our law that one cannot do indirectly what cannot be done directly. Besides, if the government moves to empower Elections Canada to hold senatorial consultations with the accompanying spending of federal money on such procedures, viewed by many as elections, this gives rise to the following question: Does such a change involve only the Prime Minister's discretion, or is it a fundamental change requiring constitutional action and procedures?

Arguably, the purpose of Bill C-43 is to change the method for selecting senators. This brings us to a constitutional issue that could see the initiative fail.

Honourable senators, true, equitable and lasting reform must be carefully considered and be ready to face the significant and inevitable hurdle of constitutional amendment requiring provincial consent. Accordingly, the best place in my view to start discussing an elected Senate would be by examining the process used to elect its members.

In addressing this issue, I would suggest that Senate elections be federal in nature and be governed by a single transferable vote, which is one of the two families of proportional representation. One of these systems requires the electors to vote for parties; the other for candidates. A single transferable vote requires a vote for candidates rather than party lists. I think that is by far the preferable option in that it provides the flexibility needed to ensure Canadian voters have all the options available to them. It is a complex system I will not get into.

I will discuss more fully the issue of minority group representation, which requires a certain size of constituency and a minimum number of positions to fill for the single transferable vote, or STV, to work. I personally would prefer a constituency of five to seven Senate seats. That representation should be provincially rather than regionally based. Assuming the Murray-Austin motion passes, that would mean one Senate constituency for Newfoundland, one for Prince Edward Island, two for Nova Scotia, two for New Brunswick, six for Ontario, six for Quebec, one for Manitoba, one for Saskatchewan, two for Alberta, and two for British Columbia. These would be large enough to accommodate minority constituencies. I believe, however, that Senate representation should be provincially rather than regionally based. It is now based on divisions. That is a matter I spoke to in the notice of motion that we discussed a moment ago. That is something the Rules Committee will hopefully study.

Honourable senators will note that I refer to provinces and not regions. The reference to regions in 1867 was a good solution for that time. Ontario and Quebec required equal representation in the Senate, and the two Maritime provinces were too small to have the same number of seats individually.

As Professor Phillip Resnick, from the University of British Columbia, said before the Special Committee on Senate Reform:

I [am not] trying to retroactively re-think 1867. The arrangements made perfect sense, given the regional breakdown of the country back then and that Western Canada, at that point, was largely still an unpopulated tract of land with very a small population compared to central and even Maritime Canada.

However, much has changed in the last 140 years. Growth patterns have moved westward, and Newfoundland and Labrador, and the three territories, cannot fit into a region at all. I expect considerable discussion on how many constituencies each province should have, but the need to move to provincial and territorial representation seems clear and worthy of study.

Senator Watt is not here, but he would not want me to pass by this matter without explaining how difficult it will be to ensure that minority representation in this place would continue if we went in this direction. I will not say more than that. This challenge will have to be met if we are to continue to see this place representative of Canada and the way it has evolved.

Clearly, honourable senators, this degree of reform would require careful study and much thought. I do feel that this body, the Senate, is best equipped to deal with the reform of the Senate. As we know, the other place, and other experts, do not fully understand the nature of our role. I hope that we embrace the challenge and conduct a careful study in the future on how this place should evolve and the procedures that should be taken to achieve that evolution.

Another important issue in determining the nature and function of an elected Senate is the length of time senators would serve.

(1800)

As honourable senators know, I support the principle of Bill S-4, although, like many senators, I find the term of eight years to be too brief. A term of 12 years has been frequently mentioned. The Prime Minister, when he came before the special committee, appeared to be open to that kind of amendment.

No discussion of a possible model for an elected Senate would be complete without review of the powers such a body would have. As the Wakeham report on reforming the House of Lords noted:

A second chamber which was wholly or even largely directly elected would certainly be authoritative and confident, but the source of its authority could bring it into direct conflict with the House of Commons.

Since the powers of the Canadian Senate to delay, amend and reject legislation are real and substantial, the election of Canadian senators will likely result in conflict in many instances and deadlock between the two chambers, given that senators will feel they have a popular mandate to exercise their powers.

Perhaps the simplest approach to the issue of powers within the model for an elected Senate would be to maintain the current situation, whereby the Senate enjoys co-equal powers with the House of Commons in all but money matters. However, this would require an effective mechanism to break deadlocks between the two Houses. Currently, all we have to break deadlocks is section 26 of the Constitution Act, 1867, which allows the appointment of eight extra senators. This is a draconian measure and one that is completely ineffective when, as is now the case, one party has a majority of more than eight. If the House of Commons now insists on its amendments and refuses a request for a free conference — a procedure that exists only in the rules of the Senate and the House of Commons — the Senate is left with rejecting the measure outright.

Many upper houses are no longer independent in the legislative process but must accede to the wishes of the lower house in terms of the final version of a bill. In many jurisdictions, the shuttle system, where bills pass between houses until both have adopted the same version, is restricted by constitutional provisions whereby the decision of the lower house will carry the day. For example, in the U.K., the powers of the lords have been severely curtailed through the Parliament Acts of 1911 and 1949 which provide that certain bills may be presented for Royal Assent without the consent of the lords. The lords have only a suspensive veto on public bills and can delay their enactment for up to 13 months.

On the other hand, the conference committee procedure is used extensively in the United States Congress and most conferences reach an agreement. Conference committees are called the Third House of Congress and are seen as low-cost negotiating institutions used to achieve stability on important legislation and effectively facilitate bicameral agreement. I believe that the conference model works better than the suspensive veto.

Canadian parliamentary practice does provide for conference committees, or "free conferences." The process is described in rules 78(3) and (4) and rule 79, and described Beauchesne's Sixth Edition at citations 745 to 752. The procedure has fallen into disuse in recent years, the last one being in 1947. Resurrecting it would allow the Senate to exchange in a more meaningful and open dialogue with the House of Commons than is presently the case.

At the present time, reasons for the Senate disagreeing with the House of Commons are drawn up and communicated to the other place by message, in accordance with rule 78(1). We have recently been through this experience with Bill C-2.

There is no direct dialogue with members of the House of Commons. Negotiations between the two Houses, if they do occur, are behind the scenes. Because the relations between the two Houses in terms of disagreement on legislative matters are unpredictable and hidden, senators are reluctant to formally amend legislation — more so than they should be, I believe. Only between 5 and 10 per cent of bills are formally amended in the Senate each session.

The use of conferences is within the federal power of amendment to the Constitution under section 44 of the Constitution Act, 1982, as it affects only the federal Parliament and executive government. Such an amendment would be in the spirit of a motion I moved and spoke to, as I said a moment ago, and has actually been passed in reference to our Rules Committee.

A section 44 amendment to the Constitution would be desirable in this case, providing that if there is disagreement on a public bill whereby either the Senate or the House of Commons insists on its amendment, a free conference must be called to attempt to reach an agreement between the two Houses. Timeframes would be established whereby a conference report must be made to each house. Each house either could either accept or reject the conference report. In the event of the two Houses being unable to agree on the final form of the bill, no action would be taken.

If the will of both Houses is that the House of Commons remain the superior body, issues could be resolved by a joint sitting of the two Houses, in which senators would inevitably be outnumbered by the Commons.

Honourable senators, what I have attempted to do in speaking to this inquiry is propose a preliminary discussion framework for development of a model of a modern and elected Senate. There are many other aspects of Senate reform I could mention, but I thought I would limit myself to a preliminary discussion of the fundamentals to perhaps help guide us through the next stage of reform initiated by the government through Bill S-4 or Bill C-43 and its strong desire to move on the issue.

Honourable senators, I sincerely believe that we must continue to expand our understanding of the Senate and how it may evolve and change. We must not hesitate to examine all the elements of comprehensive Senate reform, which is to say how senators might be elected, the powers an elected Senate might have and how seats might be distributed among the province or regions. Most of all, we must not be afraid to engage the provinces and all Canadians in this process. Senate reform should be carried out not through sound-bite solutions or piecemeal proposals, but rationally and thoroughly and in keeping with the history and evolution of our country.

As the Report of the Royal Commission on Reform of the House of Lords said:

The more successful second chambers are those which best fit with the history, traditions and political culture of the country concerned and complement most effectively the characteristics of its lower chamber.

Honourable senators, those words of vision provide an accurate description of the challenge ahead. I urge all of you to join me in this exercise to further explore the means of modernizing the Senate of Canada in accordance with the history and evolution of our country and institutions.