Proceedings of the Special Committee
on Senate Modernization
Issue No. 9 - Evidence - February 8, 2017
OTTAWA, Wednesday, February 8, 2017
The Special Senate Committee on Senate Modernization, to which was referred Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate), met this day at 12:02 p.m. to give consideration to the bill.
Senator Thomas Johnson McInnis (Chair) in the chair.
[English]
The Chair: Today's meeting is in public.
The Senate has referred to this committee Bill S-213, entitled An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).
This is a public bill proposed by one of our colleagues, the Honourable Terry Mercer, who is with us today.
As you know, this bill has a similar general objective to one of the recommendations this committee made in its first report. It seeks a change to the process by which the Speaker is selected. However, it goes well beyond this committee's recommendation, which was to develop a method for the Senate to identify nominees for the Speakership that the Prime Minister could then consider.
Senator Mercer's bill would instead amend the Constitution to place the selection process fully in the hands of the Senate itself.
Last December, we heard from Senator Mercer as the bill's sponsor. This week, we are fortunate to have before us a long-time colleague and former Speaker himself, the Honourable Dan Hays. He also has the unique perspective of having chaired the Special Committee on Senate Reform and has authored papers on the subject.
Finally, we are in receipt of a brief he has drafted on the recent developments in the Senate, which will be distributed once it is back from translation. Once we have concluded our review, today, of the bill before us, perhaps a little latitude can be exercised, and a brief discussion of his view may be in order.
Senator Hays, welcome. Please proceed with your opening remarks, and we will follow, I'm sure, with questions from the senators.
[Translation]
Hon. Dan Hays, P.C., former Speaker of the Senate, as an individual: I will start by saying a few words in French to tell you that I'm sorry, because I have lost my fluency in the French language. So I will use the help of the interpreters to give my presentation in English.
[English]
I'm pleased to be with you. Happy to be here on what I think is a very important piece of work that the Senate has undertaken under your leadership, with others on the committee.
I'll start with Bill S-213, if you like. Hopefully, there will be a chance to have an exchange on some other things, but that's in your hands, former colleagues. I'll leave it up to you, and, if there are other things that you have time to discuss, I will do my best to give you an answer, if I have one, or my views if you have patience. Feel free to interrupt and be rude, whatever you want. I am in your hands for the next short while.
On Bill S-213, I think it's a bill that we saw in the Senate years ago. It has come forward in different ways. I think the most straightforward is the one that Senator Mercer has proposed. I think it's a section 44 amendment. I don't see the provinces or any great difficulty, other than the House of Commons. Provided they support the bill, I think that that would be a way of achieving its objectives.
Some discussion, I know, has occurred on the casting vote of the Speaker to follow the precedent in the House of Commons. I just looked briefly at the Rules. The Rules are the basis of the Speaker voting first. Should the Speaker fail to do that, he or she wouldn't have a vote simply because the rules have to be observed. The Senate can change that Rule. I think that would be a relatively easy way of addressing a tie-breaking vote. I'm not sure exactly how it's done in the House of Commons.
So on Bill S-213, as a former senator and former Speaker, I think it's a good idea. I supported the idea when I had the honour of serving in the Senate, and I wish Senator Mercer, his seconder and the Senate well with it. Now, there may be some debate, maybe others who don't agree with that position, but, anyway, I would submit that as my view.
Senator Joyal: Welcome, Senator Hays. You will remember when that bill was introduced, I think, during your speakership. It was former Senator Oliver who introduced a similar bill. The issue of the constitutionality of the bill was raised at that time. Not only was it raised, but the legal opinion that the Department of Justice provided was quite clear that there was no certainty at all that we could use the general power of the House of Commons and the Senate to amend the Constitution under section 44 to change the powers of the Governor General that are specifically spelled out in the Constitution at section 38, whereby the Governor General, by instrument under the great seal of Canada — when that expression is used in the Constitution, "under the great seal of Canada,'' it refers to a Crown power, and it is exactly the same power that we find under section 24, whereby, when the Governor General appoints or summons senators, it is by instrument under the great seal of Canada. So it is a royal power.
To change that royal power, the opinion we got and the opinion that has been echoed by the Minister of Fisheries who appeared at the meeting of the Rules Committee that took place at the beginning of this session of Parliament — the Justice Department still entertains the view — was that it relates to the power of the office, the office being the power, the status and the role of the Governor General or Her Majesty.
Even though it might be, as a policy objective, as stated by Senator Mercer, a desirable objective to achieve, we are otherwise bound by the letter of the Constitution. You might be aware that there has been a recent decision of the Superior Court in Quebec last year stating quite clearly what we have to understand by Office of the Governor General, or in French la charge de gouverneur général. The question was raised in relation to Her Majesty, Office of the Queen, the same word is used for Office of the Governor General. The same definition applies to whatever the position is.
It seems to me that we have an important challenge. If the Senate adopts this bill the way it is phrased, we will certainly encounter the opposition of the government through the Justice Department that it raises a pending constitutional issue.
Would it not be preferable to achieve the same results, that is to have the capacity of the Senate to be part of the selection of a candidate for the speakership through the avenue proposed by this committee, which is for the Senate, the whole of the senators, to identify candidates the same way that the advisory committee of the Prime Minister now identifies candidates and the Prime Minister picks and chooses and the Governor General summons those persons? I will use a word from another religion that it is certainly kosher in terms of a practice, that nobody questions the constitutionality, while the approach proposed by Senator Mercer raises questions.
If we are to make progress, should we not support the recommendation of this committee that doesn't raise any constitutional hurdle and would confirm the precedent of the involvement of the senators in the Senate as a whole in selecting a candidate for the speakership?
Mr. Hays: You might remind us of the fact situation of the Quebec case you refer to. Is it similar to what is proposed in Bill S-213? It may be relevant to any answer one might seek to your question.
I wasn't aware of many of the things you've raised in terms of the recent precedents, but I would say, if it were my bill, I wouldn't be deterred. It would be important to test whether the Senate is able to propose amendments to the Constitution Act of 1867, or 1982, for that matter. The Royal Prerogative, you will recall, comes up a lot in terms of wanting to stop the progress of legislation, sometimes raised by the government, sometimes raised by people who think it's a matter that colours what it is you intend to do on a legislative basis and sometimes deters it, but sometimes doesn't. That would be the best response I could give.
It doesn't answer what the court might do if the government decides not to deal with it or take the necessary steps to get it before a court to resolve the question that I think is a question, not a final position on the Royal Prerogative.
Senator Joyal: Well, as you properly stated, a bill that has a name, as this one, to change the power of the Crown needs to have the concurrence of a minister of the Crown to allow its adoption.
We can debate it. You have ruled yourself when you were in the chair on many occasions. I remember I raised an issue in front of you in some particular circumstances. I repeat that when there's a bill that would reduce or impinge on the power of the Crown, as this bill does, we need to have, as you know, the Royal Recommendation. It doesn't prevent us from debating it. We could go up to the third reading, up to the vote at third reading. That's the ruling that you gave on some occasions. The Senate could ask the government to refer the issue to the Supreme Court to determine the constitutionality of the bill. That's one option.
In other words, the Senate can adopt a recommendation that this committee made and add another paragraph stating the Senate asks the executive to refer the constitutional issue to the Supreme Court. That would not prevent, as I say, the progress of the will of the Senate to be part of the selection of the Speaker, and it would clear, at the same time, the constitutional issue that is raised by this bill. That could be a way of approaching the issue that would meet the long-term objective pursued by Senator Mercer and the Senate as a whole, if there is a vote in the Senate.
It seems to me that this is the way to approach this issue, and we should not be inactive. The Senate should adopt the recommendation of this committee, but on the other hand recognize there is a constitutional issue and take the means to clear it.
Mr. Hays: If I follow you, clearing the constitutional issue will also have to happen if the government raises the matter at third reading and refuses Royal Assent or Royal Consent to proceed with the bill. That would be the best time to follow an alternative route, if you're really serious about these changes to the Constitution Act, 1867, as it relates to the Senate. Now you have the Quebec case, which as I say I haven't read, and maybe it's crystal clear and covers this as well.
The Senate has a choice, but if I remember from the Modernization Committee's first report, the proposal was to put forward several names, not one name, and I think the Senate might find that unsatisfying. The objective seems to be able to do what they do in the House of Commons, and it's a reasonable objective, and that might colour what the Supreme Court would say if it were asked about the applicability of the Royal Prerogative in terms of a way to avoid dealing with it formally before the court, or letting it go through and dealing with it by vote in the House of Commons.
If they don't want the Senate to elect its Speaker, that's the government's ultimate tool to prevent that from happening, and we would all be interested to know if they feel strongly enough about that. I don't think they would, other than the Prime Minister will want to choose the Speaker. But we'll get into it later. This is a time of great change in the Senate, triggered by the new appointments process. A lot of these questions are going to come up. That's my feeling about it. It may be an unsatisfying answer.
Senator Joyal: No, not at all. Even though we would adopt a bill at third reading, we would still need the Royal Recommendation to vote at third reading. We could debate it fully at third reading, but when the Speaker calls the vote, he will have to notice that there's no Royal Recommendation and the vote could not take place.
Mr. Hays: I understand.
Senator Joyal: So the bill will never make it to the House of Commons. That's the point I'm raising.
Mr. Hays: And I'm saying it might be worth testing.
Senator Joyal: Thank you.
Senator McCoy: I'm delighted to see you back, senator.
Mr. Hays: And to see you, Senator McCoy.
Senator McCoy: I am from Alberta; we still miss you a lot.
I was going to talk along this line because the sponsor of the bill, Senator Mercer, the last time he appeared here, was encouraging us to do much of what you are suggesting, and that is press forward with this bill and put it in front of the government and see what reaction we get, and that's the only way we'll precipitate that conversation.
You say you are endorsing that approach. I'm paraphrasing what I thought I heard, and if I'm wrong, you're going to put me right. I'm hearing that you can have a plan A and plan B because the recommendation that the Modernization Committee put forward in its phase 1 report could be construed as a step in that direction, and they are not mutually exclusive until things are settled in the law.
We all know if you have two lawyers in the room you probably have three legal opinions, so until we get these things resolved one way or the other, am I hearing you say you would endorse a plan A, plan B approach?
Mr. Hays: There's quite a difference between the plan A, Bill S-213, and plan B, five names submitted from which the Prime Minister would choose.
Perhaps the Senate could put one name forward and say that they had a secret ballot, followed a similar procedure to the one they have in the House of Commons in selecting their Speaker, and they think this is the candidate you should choose. I don't know whether or not that would be public, but let's assume it is, and then the Prime Minister says, no, because of the Royal Prerogative or because of this, that or the other reason, I'm not going to follow that request; thank you for your efforts.
That would be interesting. That's another way of approaching it, and I think that's a fallback position.
Senator McCoy: We're familiar with the old ways of the Senate, and you're quite right, we are in transition and developing new ways, and that evolution will take place over some time.
To hearken back to our old practices, we would have turned to the Leader of the Government and had some informal conversations with that senator, who would probably have had some informal conversations with the Prime Minister, the minister, the cabinet, or someone of that ilk, to have some idea of what preliminary thinking might be, or to develop some preliminary thinking.
We do not have a government leader now, but we do have a Government Representative, who has said to us that he is not only the voice of the government, that his job is to bring that to the Senate, but also his job is to take the Senate's voice to the government. Would you recommend that we encourage Senator Harder to have a preliminary conversation with the government and to give us an indication of what response might be forthcoming?
Mr. Hays: Yes, that would make eminent good sense. By the way, I know Senator Harder. I've known him for a long time; I have a great deal of respect for him. He has a hard job, quite frankly.
Senator McCoy: Yes, he does.
Mr. Hays: I'm sure he would anticipate that kind of engagement.
Senator McCoy: Thank you for being with us today.
Mr. Hays: My pleasure.
Mr. Chairman, I had a couple of introductory comments. I don't know whether it would be appropriate to make them, but I'll leave it in your hands.
The Chair: On Bill S-213?
Mr. Hays: No.
The Chair: If we could just finish with that, because I believe the questions are related, and then we'll get into that.
Senator Wells: Thank you for appearing, Mr. Hays; it's an honour to meet you.
My question is about forcing the hand of the Prime Minister, and there's public discussion to the degree that there is currently public discussion on the democratic legitimacy of senators versus the democratic legitimacy of the members of the House of Commons. I don't have those questions, but many do.
Because the Speaker of the Senate is so high up in the order of precedence, behind the Governor General and the Prime Minister, what do you think would be the fallout of — and I'll use the popular term — "the unelected senators'' choosing someone so high up in the order of precedence without the perceived public democratic legitimacy certainly that the Prime Minister would enjoy from his process?
Mr. Hays: Fair question. Just to remind you, the Speaker of the House of Commons is only one level below the Speaker of the Senate in the order of precedence, and is elected. The short answer would be I think the Prime Minister would have a similar process in his or her own mind to go through. Do I want to ask the Speaker of the Senate to represent Canada at whatever, which is sometimes done because of the way the order of precedence works. Should this be done by the Governor General or the Chief Justice? If you're the Prime Minister, you're just before the Chief Justice, and down the line.
That's a prime ministerial job that he or she would have to encounter on a frequent basis. It's different. It's not his or her person. Maybe it is. But how strongly does the Senate feel about choosing its own Speaker? If it doesn't feel strongly, then the bill won't pass the Senate. If they do feel strongly, then they should see what they can to achieve the objective they agree is worth pursuing.
Senator Wells: In the absence of Bill S-213 passing, and it goes to one of the questions in the modernization study report about having the Senate select names and give them to the Prime Minister for his consideration; of course, he wouldn't be bound or obligated by that. Do you see a possible flaw in that the Prime Minister would not have to choose one of those names, he could choose his own and create within government, and the Senate, a question of — I won't say "democratic legitimacy,'' but legitimacy among one's peers if the Speaker is there and is not one of the five who was put forth?
One of our jobs as senators is to foresee the unintended consequences of the actions that happen in the legislative process. Do you foresee that as being an issue that should be considered, or is that so unlikely that we should dismiss it?
Mr. Hays: It's an issue. If the Senate goes through the process of submitting its first choice, or a number of names, and the Prime Minister doesn't do that, will the senators have the same regard for the chair? Will that be bad for the Senate?
I would say some will, but I would speculate that most will not. They will respect the chair because it's our tradition, and the chair, whoever he or she is, may be a little uncomfortable. I'm not sure how they would feel about it, but if they decide to do the job then I think senators will rise to the occasion. That's my guess.
Senator Wells: I've only been a senator under three Speakers, I believe, and they have all done an excellent job, and I'm sure the ones before did excellent jobs.
Do we have a solution in search of a problem? Is there something wrong with the system we have now?
Mr. Hays: No, it doesn't lie in my mouth to say —
Senator Wells: Well, you sat in the chair.
Mr. Hays: There's nothing wrong with it, but there's nothing wrong with changing it a little after 150 years.
Senator Wells: For the sake of change, not for the sake of need?
Mr. Hays: No, never change for the sake of change. Change for good reasons, and we'll maybe talk about that a bit later.
Senator Wells: Okay. Thank you very much.
Senator McIntyre: Thank you, Mr. Hays, for your presentation. One thing is certain: There appear to be two approaches regarding the role of the Speaker. One is through a constitutional amendment, as outlined in Bill S-213, and the other is through an amendment to the Rules of the Senate, as recommended by this committee in its October report.
I was listening to your presentation, and, in your view, a constitutional amendment would achieve the same results as the committee's approach. Bearing that in mind, Bill S-213 proposes that the Speaker's voting rights be limited to a tie-breaking vote. Would this proposal have the effect of limiting the Speaker's participatory rights in chamber proceedings?
Mr. Hays: The Speaker can, as all senators can, vote as things stand. The Rules require him or her to vote first, which, I think, would have to be respected. If it wasn't, the vote wouldn't count, would be my view. Looking at the Speaker of the House of Commons, he or she only votes in the event of a tie, and they vote to break that tie. If that's what Bill S-213 does — I'd have to take another look at it — then, yes, the Speaker's ability to vote, other than to break a tie, is, I would say, arguably changed.
But the bill, if you look at it, probably could be drafted in a way to accommodate a different result than I'm speculating on. That is that, should the Speaker wish to vote, they couldn't be prevented from voting on only a tie, but they could add their vote to one side or the other at the end because the Rules, at that particular point in time, would say that, if the Speaker is going to vote, he or she has to vote at the end, as the last vote.
Senator McIntyre: I also note that the bill contains no provisions to grant the Speaker powers and duties with respect to the administration of the Senate, like those of the Speaker of the House of Commons. Now, you've had considerable experience as Speaker in the Senate, and, in light of your experience, are there additional powers that you feel the Speaker should have?
Mr. Hays: You mean, for instance, chairing Internal, things like that?
Senator McIntyre: Perhaps.
Mr. Hays: Which is what the Speaker of the House of Commons does. Yes, I think the Senate culture and tradition has been that the Speaker is fully engaged in the business of the Senate. Some Speakers have chosen, for instance, not to attend their party caucus. Some have chosen to attend them or to attend regional caucus. I don't know that it would be a good idea to try to restrict that in the Senate, simply because its tradition has been to give the Speaker that opportunity.
The Chair: Thank you, Senator McIntyre. Senator Eggleton will be the last, and then we'll go to Senator Mercer for any comments he may have.
Senator Eggleton: Look, from a policy standpoint, it is not exactly revolutionary what Senator Mercer is suggesting. It's equal to what is done in the House of Commons in terms of the election of their Speaker and also in terms of the vote, which only comes in the case of a tie. I think that's preferable to the committee recommendation.
Now, remember, the committee recommendation is what it is because we were told that we could not entertain, for purposes of that first-round discussion, areas where a constitutional amendment would be required. Well, obviously we're now commenting on a bill that has been sent here for comment, and the bill does require a constitutional amendment. But I think the constitutional amendment is quite clearly in section 44, which is not a big problem. It can be done internally within the Parliament of Canada. Oh, the Justice lawyers may have some difficulty. Well, you know, Justice lawyers can get things wrong. The last government got a lot of bad advice from the Justice lawyers that ended up being turned down in the Supreme Court of Canada.
I think that, if we think, from a policy standpoint, that this is the right way to go, we should push it and hold back the committee's recommendation, which I see as a plan B, the idea of submitting the five names. If you put them both forward at the same time, the government will take the easy one.
So I'd suggest that this would be the preferable one to push forward, and hold back on plan B. If they decide they don't want to give the Royal Prerogative or whatever is required, then we can always revert to that suggestion.
I want to ask you how other upper houses decide on their Speaker, if you have information with respect to other houses within the Commonwealth that would be considered to be operating under the Westminster system, although the Westminster system varies all over the place when it comes to the upper chambers. But as to Speakers in upper chambers in other Westminster Commonwealth systems, do you have any knowledge about how their Speakers are selected?
Mr. Hays: Not reliable. My recollection of Westminster is that it's only post-Wakeham royal commission, the 1999 Blair government reforms, that the House of Lords has had a Speaker. The Lord Chancellor has always acted in the past as the Speaker. It now has a Lords Speaker, which, I'm told, the members of the Lords ignore because they have a history of self-regulation on which they pride themselves. Anyway, that constitutional change has occurred. I believe they elect the Lords Speaker.
In the U.S., the Speaker, I guess, is the vice-president, and we know how he or she comes to office.
Senator Eggleton: I wouldn't call that a Westminster system.
Mr. Hays: Well, anyhow, it's a bicameral system, and, in 1867, we were much influenced by that system.
Senator Eggleton: So, as far as you know, the House of Lords, in the mother of all parliaments, elects its own Speaker?
Mr. Hays: I may be embarrassed, but that's my recollection.
Senator Eggleton: Well, why not Canada?
Senator Mercer: Thank you, colleagues, for your discussion on this bill. To go to Senator Eggleton's last question, my research shows that the only bicameral legislatures that do not elect their Speaker are Canada, Antigua, Barbuda and Bahrain, so we're in really illustrious company.
I did want to go to the question that was raised about the Speaker under my proposal, about limiting his or her personal powers as a member of the Senate. My interpretation would be that, if the person who is the Speaker is sitting in the Speaker's chair, he or she would not get to vote, but, if he or she wanted to vote on a particular subject or to speak on a particular subject, as happens now, they leave the Speaker's chair, sit in their ordinary seat as a senator, speak, vote, do whatever the rest of us do collectively. So I wouldn't see any diminishing of his or her power other than the fact that, if he or she is in the chair, they don't vote. If they're not in the chair and want to give the chair to the deputy Speaker, which is also part of the proposal, that there be a deputy Speaker, then the deputy Speaker doesn't vote, but the Speaker could be sitting in his or her ordinary seat as a senator and cast a vote whichever way they so choose.
So it's the position of where you are when the vote is called. Under my proposal, if you are sitting in the Speaker's seat, and that would mean if any one of us, as happens on occasion, were called on to sit in the Speaker's chair because of the absence of the Speaker and the Deputy Speaker, then we would really push our ability to vote as well, but it's the power of the chair that would not get the vote. That is my interpretation.
I would encourage, colleagues, let's test the mettle of this government. They said they want Senate reform, so let's put it to them. If we pass this and send it to them, then I would suggest that their inaction would be egg on their face, not ours.
Senator Lankin: This question is not really for the witness. I appreciate you being here today, and I look forward to reading your remarks. It's more for the comments that were made by Senators Eggleton and Mercer. I support the election of the Speaker; I have no problem with that. I come from a legislative background where that was the case.
My question is one of the pragmatics of taking forward a legislative and constitutional change. My concern is informed by the fact there are other issues we would need to address with respect to the rules we want to change. We can change our practices, but if we want enshrined, for example, the definition of "political parties'' and their role in the Senate, all of these things are up in the air as we talk them through.
I think that if we were to do something that involves opening the Parliament of Canada Act, it's something we would want to come forward with once with a number of proposals. I wouldn't want to hold anything up, but I don't think it's advisable to go on a one-off.
Do you have any comments on that? My concern would be proceeding on this and not on other things. Some of the issues might be more controversial, and we need to work them through as a Senate body to determine whether or not the majority is in favour.
Senator Mercer, I turn to you first because this is your bill.
Senator Mercer: I appreciate what you're saying, that there are other changes that should be made, including the definition of "political parties'' or groups of senators. I understand and support that. However, those are more controversial and require more work. This is a straightforward step for us to start taking control of our own house.
We have a government that has said they want Senate reform. They want senators to, for lack of a better term, clean up their act. Then you know what? If you want to clean the house, you need to have control of the house.
The ultimate person in this chamber is the Speaker. He or she controls the flow and the debate and obviously makes rulings from time to time when required. This is the beginning, not the end, of what we want to change. I don't see the first step of electing the Speaker as being an easy step. Also, it's an opportunity for us to find out whether they are really serious down the hall about Senate reform.
Senator Eggleton: In response to Senator Lankin's question, two things: First, this issue of the Speaker and how the Speaker is chosen has been visited upon us through the work of this committee. It's in that report. While it's a reasonable suggestion, I think the suggestion of electing our Speaker is a better one, and we could put it to the test and should do that.
I don't see it as mutually exclusive in terms of the other issues. Yes, I would agree there are other issues in the report that should get priority in terms of timing. We should move ahead with them, and I'm pleased to say that we are starting to move ahead with them. Mr. Chair, you've done a good job trying to do that as well.
This is one that needs to be addressed. Senator Furey I don't think is going anywhere for a while. I certainly hope he doesn't. He does very well. It may not be, from a time standpoint, one to push this week or next week, but it is part of the issues in terms of reform, and it flows from a committee recommendation here, so I think we should do it.
The Chair: Thank you very much. That will do it for this bill. As I said earlier, I wanted our witness to say a few words about Senate reform, as he has authored some papers.
Before I do that, I want to acknowledge a now-retired senator who introduced this motion to get the Modernization Committee in place; the Honourable Senator Cowan is here. Stand up, Senator Cowan.
Hon. Senators: Hear, hear!
The Chair: Everyone knows him. He's the gentleman who had the vision to do this. I'm not sure if he knew where it was going. He certainly didn't tell me, but we thank him for his effort and service. We're very proud of him in Nova Scotia, and I'm sure we've not heard the last of him. Thank you for coming.
Former Senator Hays, would you talk about reform? You've chaired a committee on Senate reform.
Mr. Hays: Certainly. Keep me on topic, Mr. Chairman, and former colleagues. I have been an interested observer, not only as a senator but after leaving the Senate, of what is happening in terms of Senate reform.
While it's not a topic that is discussed these days, it's still on people's minds, and it's an important topic. We've come to a crossroads with the government of the day's initiative.
Going backwards a bit, Charlottetown, Meech Lake, the Macdonald royal commission on Canada's economic prospects had recommendations. There are numerous Senate and joint committee reports recommending reform, and a lot of individuals. Until now nothing has happened by way of a formal change to reform the Senate.
Now something has happened, and that is that the government has indicated, without talking very much about it, that henceforth, in its view, all members serving in the Senate should be screened and not include partisans.
If I calculate correctly, by year end, or close to it, senators appointed in that way will form a majority of votes in the Senate. When that happens, it will be up to them. They may ignore the fact that they have the power to make change, but I doubt it. It may take them a while.
So this is different. Something has been done to change this. The government hasn't said much about it other than that they've done something; namely, put in the current appointments process that it's following. It would be interesting if the government were prepared to talk about how they see it evolving because it's going to be different. Because it's as new as it is and it's one instrument that has been introduced by way of change, without any embellishment or any sort of speculation on how that will progress, it's going to be very interesting.
I would think it would be useful if some way were found to try to get something out of the government in terms of how it sees this new process changing the way in which laws are made and changed in Canada because of the constitutional role that the Senate plays in those things. Some of it will come slowly, but I think it's very difficult to predict exactly what the Senate will look like, assuming the current government is there for another term or even two terms. With another term — I've put it in the paper I distributed, I think — another 42 senators would be appointed by the current Prime Minister, something like that. I've forgotten the number, but quite a few on top of the 20-some odd that are there now.
So on Senate reform, we're engaged now whether or not we want to be. Whether or not we recognize it, we are. During this transition time, on the way to a majority of independents, I assume the response will be to try to help to shape in a way that's responsive to the change that's about to take place.
Would it be possible for the majority of independent senators to run things the same way? I'm not sure how that would work. We've had a government-opposition dynamic from the Westminster model.
Anyway, one of the things is the Modernization Committee. It's a brilliant idea. It's a very important initiative on the part of the Senate. The word "modernization'' anticipates things that can be done with the structure of the Senate now, without getting into a formal constitutional change where you're engaging the provinces under section 42 as opposed to 44. So there's a long list of things that are like electing the Speaker, even less controversial in terms of using modern language instead of the language of 1867. I think that might be a way of preparing for a different kind of Senate.
The government may change, and it may be that a new government would not follow this precedent. But the existing government is there long enough to see a majority of independent senators populate the Senate. It will drive some sort of change, and, if it's there longer, it might drive considerable change. I don't know what to say in terms of how you should restructure things or whether you should try to preserve things the way they are, but I think that your committee should be encouraged to think that through.
I'm going to stop there. I have distributed a paper with a number of suggestions that really repeat the suggestions I made in a paper that was tabled in the Senate in 2007, to which I've added an afterword, which is available on request. It's already translated. It talks about the position prior to the Harper attempts to reform the Senate, all of which came to nothing, like, in the end, in terms of formal change, all other previous attempts to change the Senate.
So it's a good idea to start thinking about that and start thinking about what should be done now to prepare for that change. It's really quite early for the independent senators to be fully engaged. It takes a while to find your way around the Senate, to become familiar with the existing procedures, to initially become a part of them because you must. The government has a representative who is helpful. In any event, I hope that provokes some questions.
Senator Joyal: Sorry to be the first again. Senator, you have had an opportunity to chair the special committee that was put together at the beginning of the mandate of the former government, and you have quite rightfully recognized that we're bound by the Constitution the way that the Supreme Court has interpreted it. As you well know, a major recommendation of your committee has been struck down by the Supreme Court as being unconstitutional.
On the basis of the framework within which we operate now, knowing more about the constitutional constraints under which the Senate is called to play its constitutional role and considering the configuration that you have described in the Senate, the fact that there is a large membership of independent senators where before it was only marginal — today it's a significant portion of senators — on the basis of your experience, what would be, in your opinion, the major objective of our initiative to adapt the institution? If you were part of this group in that context: You have made some recommendations, but, at the time you made them, in 2007, you didn't have to consider the context of the present composition of the Senate. What would your suggestions be on the basis of the format in which we are now called to operate?
Mr. Hays: Thank you, Senator Joyal. I'm not surprised you're the first questioner because we've had many conversations, both formally and informally, on this.
Just to remind everyone, what Senator Joyal is referring to is the view expressed by the special committee I chaired that it would be possible to amend the Constitution without having to go to the provinces, under section 42, to limit the terms of senators. At the time, Mr. Harper's reforms included that, and that's what he wanted to push through, along with a lot of other kind of unusual things, which amounted, in sum, to, "What's my easiest route to abolishing the Senate?'' The court responded and said that this is part of the architecture of the Constitution, and, as they reported in a 1980 reference, this is a fundamental feature or essential characteristic of the Senate. If you want to do that, you must have provincial approval. So that's clear. That is good law today. One can argue, but there it is.
There is, however, an interesting approach on that very question, which would be one that I would raise as something that you might consider, and that is term limits. When Harper raised it, term limits were to facilitate an elected/selected Senate procedure. I think that coloured everything, including the court's views, but that's just my opinion. The court's views are what they are, so, clearly, if you wanted to consider term limits — which I think would be a good idea for the future, simply because who knows what other governments might do — we do know that the official opposition has a position consistent with the Senate functioning the way it is now. We do know that the third party has a consistent position on abolition, all of which, at some point in time, are going to have to come forward again and be discussed in a formal way that engages all Canadians, as well as people like us who are interested in the issue.
One of the things that I think would be helpful would be to consider a reasonable fixed term for senators. The Standing Senate Committee on Legal and Constitutional Affairs that finally disposed of the matter that Senator Joyal has raised said, "We are uncertain as to whether the Parliament of Canada has the power to do that, and, accordingly, we will not do other than to say, 'Get your reference in, and send the bill back. And we'll consider it.'''
But they did say — and it was a different Senate than the Senate of today — that, if you had a 15-year term, we would find that acceptable.
I think the window between 30 and 75 is what we have now, and I think a consideration, without putting a number on it, has to be 15 years at least, I would say. It might be 12, maybe 20, but putting a fixed term in place for time in the Canadian Senate would, I think, be worth considering. There are other things, but that would be one. I think that, if you did it today, I doubt very much that, if it were reasonable and seen to be reasonable by the provinces, they would do other than give it a nod. It's certainly worth a try.
Senator Joyal: In fact, in relation to terms, the Prime Minister, when he recommends to the Governor General to summon a candidate for a Senate appointment, has a capacity to limit the terms of the senators. If the Prime Minister decides to appoint only senators or candidates who are 65 or over, in fact, he limits the term to a maximum of 10 years, or 62, it would be a maximum of 13 years. The Prime Minister has that power. Nothing would prevent him.
In fact, the Prime Minister under which you served as Speaker, Mr. Chrétien, you will remember, decided to appoint rather late-in-age senators. He even appointed a senator who was only there for six months, if I remember, Senator Betty Kennedy, and you will remember that there was rapid turnover in those days because the Prime Minister decided to appoint a large number of senators who were 70 and over. Some of them contributed, in my own opinion, very remarkably. Some others less, for all kinds of background experience that didn't prepare them to really be efficient immediately.
As I said, the Prime Minister today — you suggested 15 years — could decide to appoint only people 60 and over, and that would be, in practice, a term limit of 15 years.
There is a way around the formal, binding framework of the Constitution when you read it in the context of the convention that a prime minister might want to establish and his successor to follow. That, in practice, would limit the term of senators. I have not looked into the ages of the new senators, the contingent of the new senators who have been appointed, but it might be an exercise we might want to do, to determine the median range of the mandate of the present senators who have been appointed.
Mr. Hays: It's a rather crude tool, though. I think it's a valid point, but that would be worth doing. You worked very hard to provide us with a charter that says that we should not discriminate on the basis of age, and we currently, under our Constitution, do now discriminate. A 29-year-old is ineligible. A 76-year-old is ineligible. And there are a lot of 29-year-olds and 76-year-olds who are vital. I don't know so much about the lower end, but, certainly, for me, as a 70-ish person, 76 is not so old. I think a fixed term would have value and would fit better what the government of the day seems to have in mind in terms of only having independent senators serve in the chamber, putting a fence around that, and it would allow us to get rid of the discriminatory provisions of our Constitution Act of 1867. That's my view.
Senator Joyal: The only legal comment on that is that, as you know, the section of the Constitution that provides for the age limits of the Senate has been held to be constitutional because part of the Constitution cannot be contradicted by another part of the Constitution, i.e., the Charter in relation to Senate appointments.
So, in other words, those sections of the Constitution are not challengeable under the act because, as I say, they were there prior to the Charter, and, when the Charter was enacted, the Charter could not contradict what existed already in the Constitution. There are many decisions, as you know, in the Supreme Court on that ground.
Mr. Hays: That's a valid point.
Senator Joyal: I think, generally, that it would be helpful for either the Prime Minister or the Senate, but I'm a bit leery when you mentioned that we don't know what the government wants to do with the Senate. I would say that it's not for the Senate to wait for the government to come forward with some proposals. I think it's up to the senators to think to themselves how they value and how they determine the way that they will assume their constitutional role.
I think the proposal put forward by Senator Cowan, which was supported by the opposition at that time, is, in my opinion, the valid approach for the Senate. As much as I agree with the proposal that the Senate be involved in the selection of the Speaker, we are bound by the Constitution. I think that to recognize that is inescapable, but, on the other hand, I would not be the one to think, "Well, if the government doesn't move, we won't move.'' I think it's up to us to move, generally, on a clear understanding of what the constitutional role of the Senate is, the way we assume it daily in the debate and study of legislation.
The passive attitude, in my opinion, is not the best approach to serve us. Again, the Senate has to adapt to a different human geography and political geography. It is up to us to determine the choice and the decision that we want to recommend to our colleagues to decide.
Mr. Hays: I agree. I don't argue at all with that. However, I think the government is also part of what it is that Canadians have a right to be informed by. So as to the Senate itself, along the lines, I said that this is a change that is a first. We have never had one actually implemented. This is implemented, and it's going to be different, going to change things. The government obviously feels it will change things for the better. I have some questions about that in that partisanship, while generally regarded as a bad word, just happens to be the way we resolve most of our political problems. But anyway, that aside, there may be room in the future for that. I'm not sure.
Ultimately, the people who are not engaged and the people who should be getting better and more information on the future of their parliamentary institutions — institution in particular — are the people of Canada. The normal way that that would be done is that the government would say, "We think change is in order for the Senate.'' They do. "We've made the change, and we've taken steps to facilitate and do what we can. We will take more steps and will do more, but our ultimate objective is that we think a non-partisan parliamentary decision-making body is a really good idea, a really good idea because partisanship is looked after on the house side and non-partisanship, that is, the diversity of Canada, and the reasons for doing it so far — and there are not a lot — are served by a legislative chamber that's made up of non-partisans.''
Hopefully the Conservatives and the New Democrats, just to name the two other parties in Parliament — the Greens — would respond to that and say, "We agree, or we don't agree.'' There would be a discussion, and Canadians would benefit from that discussion. That's my point, I guess.
Without that, it's kind of under the radar, and because it is an important change, I don't think it should be under the radar. I think it should be above the radar.
Senator Joyal: Thank you.
Senator McCoy: Once again, as you say, you were a passionate supporter of this institution before, you have its best interests at heart and you always will have, and I'm delighted that you are still as engaged as you are 10 years later.
I did just want to double-check a couple of the comments you made here. I don't want to put my own opinion here. I would like to elicit yours, but in this case you did say that the government had said that in the future all senators will be non-partisan. Could you point me to that citation? I have never heard them say that. I have heard them say, when they announced it, "We believe that there should be a less-partisan Senate.'' I have never heard them say it should be a non-partisan Senate. However, I may have missed something, and you having an astute legal mind and a perch in a law firm in Calgary might have spotted something that I did not.
Mr. Hays: Your question is well put. I have listened and read, and you're right. Someone somewhere along the lines said, "We never said we wouldn't appoint a partisan senator.'' So that may be true, but it wasn't said very loudly and it wasn't stated what would trigger a change in approach.
So we have a Senate reform process that's been put in play. It's advancing, and I think a tipping point in terms of real change won't occur overnight. It may take a long time, but obviously the independents will not have the culture that the Senate has been benefiting or not benefiting from all along, and that's worth talking about.
I think that while the government hasn't said anything to commit to not appointing partisan senators, that's fine, but that's all they've done, and so that's what we see, and maybe it's a great idea. I'm not arguing that it's the wrong thing to do. We'll see.
I read the first mandate letter to the Minister of Democratic Institutions, which contained the words "Senate reform'' as a responsibility of that minister. I read the new one, and that's deleted. That's not there anymore. The best I can tell, it's not something that's simmering away somewhere and that we will hear more about. I just think a few words of polite, cautious encouragement might make the matter subject to more public discussion.
The Senate is doing a good job, and this committee is a great example of that. It is a brilliant idea and I'm jealous. You have a lot of really interesting stuff ahead of you, in my opinion.
Senator McCoy: In 2014, the Supreme Court of Canada on the reference case spoke quite strongly about its views on the independence of the Senate and its senators, in particular. Then we had a decision by Justice Vaillancourt. It was an obiter dictum. It was a side comment that he suggested that the Prime Minister's Office and their interference in the daily business of the Senate was — I don't know which word to use, but he very clearly thought that was improper.
Then in, I think, the late fall of 2015 our Rules Committee, I believe it was, invited the ministers who were then responsible, LeBlanc and Monsef, to come and speak to us, and they said very clearly, "We believe that this is the Senate's business and that the executive and the House of Commons should not interfere with the Senate's business.''
Your suggestion to get the government involved, do you think that might be misunderstood by people as to reverting to the state of affairs that was not considered appropriate?
Mr. Hays: That may be the reason the government is not saying anything much about this. They do not want to be seen to be trying to run the Senate from within PCO and so on, outside of the Senate, or via the House of Commons, which is the proper posture for the government to take.
However, the government is inevitably involved in some decisions. If the Senate, for instance, decided to proceed with term limits, it would have to go to the house for approval, assuming the provinces didn't spike it by saying "we don't agree,'' in which case drop it because the culture of our time is we're not going to talk to the provinces, or you're not going to convince the government to do that, and I understand why.
It would be valid to make the appointments commission statutory, and both the Senate and the House of Commons would be able to talk about it. It's non-statutory, as is the one in the U.K., so you don't talk about it, so I just think that it's important stuff that we engage people on.
Mr. Justice Vaillancourt, that is interesting. It is worth noting, and I'll leave it at that.
Senator McCoy: I heartily endorse your desire to have civil society engaged in this historical transition in the Senate of Canada, but you made some references to the new independent senators, and I have had the privilege, and I do say the privilege, of working with newly minted independent senators, even though they have been here for a while, and I have had the pleasure of working with newly appointed senators who have declared themselves to be independent. I have never been more optimistic about the future of this institution, and I'm impressed by their intelligence. I'm impressed by their willingness to take responsibility. I'm impressed by their desire to participate and make a difference for the better and really to serve Canadians.
I would be very pleased if you would accept an invitation from us to come and talk with us so that we could then share with you the fairly advanced state of our discussions that we have undertaken over the past eight months or so, and our plans to carry forward those discussions, and also to be apprised of the usual channels that have shifted within the Senate already to accommodate independent senators. I think you would be probably as optimistic and excited about the future as I am.
Mr. Hays: I would be happy to.
The Chair: I was hoping to go in camera for five minutes or so, so if we could tighten up, it would be great.
Senator Dean: Thank you very much for joining us. It's a treat and a privilege to have you share your experience and wisdom with us.
I'm going to go back to something you said earlier when you described the trajectory of reform. You painted a picture of a group of independent senators joining and perhaps possibly soon becoming a majority in the Senate. Your guidance that the new people amongst us — I'm in week six, so I'm one of the people slowly feeling my way through.
I do know a couple of things. One is that I don't need any more guidance from the government or Prime Minister than I already have. I suspect that the phone call made by the Prime Minister to me is exactly the same as the one that was made to other appointees, in which he focused on one thing only, that he wanted me to go to the Senate and act independently, think independently and contribute towards a more independent and less partisan Senate.
I think, arguably, if a Prime Minister or other political leader or government charges people to go off and act independently, it's probably not prudent to then follow that up with, "Oh, and here's a list of things that I'd like you to do to give life to that.'' I don't think I'm speaking alone, six weeks in. I think that's probably the view of a large number of my colleagues as well.
Senator McCoy has mentioned already that the Prime Minister's conversations and public statements about a less partisan Senate were preceded by some fairly clear direction from the Supreme Court in 2014. I think guidance from the Supreme Court and from a new Prime Minister is guidance enough for me. I'll speak alone on that.
The issue for me is how do we work collectively to operationalize that guidance and to grow a less partisan Senate? I think "less partisan'' is the operative phrase. I don't think anybody is talking about driving partisanship out of the Senate, but if I can put it this way, the porridge is a long way from that right now.
Coming in at this time of change, time of promise, I think, with pre-existing guidance from the courts and the Prime Minister, what would be your advice on a couple of things that you would do if you were sitting in our chairs now to start to shift both the tone and substance of the Senate in terms of its ongoing partisan character? That's the question.
Mr. Hays: Thank you for sharing your initial experience and your conversation with the Prime Minister. I like what you said, and I would have expected nothing less, but it's good to hear that.
As I have alluded to, you have some interesting decisions to make to change a partisan-structured set of rules, history and precedence into something else. The government doesn't have to say, "I want the Senate to do this, that and the other thing,'' but there are things, some of which you just shared, that the government could do to confirm that they see this henceforth as being a body where decisions will not be made in the same political way. Not to say there aren't merits to political decision-making. In the paper that I have distributed, you will see some very supportive things about democracy, political parties and partisanship and the old saying of Churchill or whoever, it's the worst way of governing in the world; there's nothing better.
So you might consider how an independent Senate, without the political background that senators like myself had, serving as president of the party, being on a platform committee, going out to Canadians and trying to find out what would be appealing to them in terms of voting for the party that I'm a partisan of, you're not interested in that stuff, but that's important stuff, and it's important to stay in touch.
So what's the substitute for that in, say, two or three years' time when you have the power to do virtually anything you want in terms of the Rules and so on? Is something like that missing in how you make decisions in committees and on whether or not this is a good idea?
With assisted dying, you had the court to assist you on that, and in the end you deferred. Are you going to defer all the time? That's a hard decision. You have veto power over all but constitutional change, so you should start thinking about that. Is there a guideline to use saying, "Come hell or high water, this is not going through''? Or am I going to send a signal, as Senator Pratte was saying, that you're at risk, which is another way of using a legislative body with an absolute veto power?
It's not too soon for those discussions to take place, and there's a lot to be learned from the partisans that are here, assuming they are destined not to be part of it in some future time.
And also for Canadians to say, "Well, that's a great idea'' or "What about this, what about that?'' There's no way you can predict what Canadians are going to feel about it or what the Conservative Party is going to say about it or the New Democratic Party or the Saskatchewan Party, but you can't avoid it, so I think the sooner you get into it the better.
Senator Dean: Thank you.
Senator Eggleton: I want to talk about regional composition of the Senate. I know this was an issue you were concerned about when you were here because of the under-representation of the West. The Fathers of Confederation were very concerned about regional balance. The Atlantic provinces were concerned about being overwhelmed by population increases and control in the House of Commons by central Canada, Quebec and Ontario. Quebec was also concerned about the protection of language rights in an English-dominated country, so the 24 figure was set: 24 for Quebec, 24 for Ontario, 24 for the Atlantic provinces and 24 for the four Western provinces. When Newfoundland came in, an additional 6 were added and then subsequently 3 were added in the territories.
While the upper chamber, the Senate, is not a rep-by-pop house, nevertheless, the concern about regional representation still exists because it's out of whack with the population situation. For example, both British Columbia and Alberta separately have twice as many people as Atlantic Canada, yet Atlantic Canada has 30 seats, Alberta has 6 and British Columbia has 6. That is way out of whack.
Now, it's been difficult to address this issue because the government's position has been hands off on any constitutional change, and this does require a constitutional change, which perhaps comes under section 42, as you suggest.
Let me ask you two questions in that regard. One, what do you think is the better balance? At this point in time, what do you think would be a better balance in the Senate seats on a regional basis? Should British Columbia or Alberta or both become their own regions? What form do you think would work?
Second, what to do about the constitutional situation? Is it one that should be pushed ahead with? The government always says, "Oh, well, we do that and then other things come on the table and it's a mess,'' or is that an excuse? Should we be pushing for this kind of an amendment? To me it seems like a very common-sense amendment, but anyway, I'd like to get your thoughts about this question of regional representation.
Mr. Hays: You make the point that I'm from a region that considers itself under-represented in the Senate. I guess to make a long story short on this — I could talk a lot about it — to settle on what I think would be a best solution, and that's just my view, it would be to follow the German federation example and have small-, medium- and large-sized Länders or provinces and allocate seats on that basis. Without getting into the detail of how they do that, that does address the problem you describe very well, and that is some places are under-represented, some are overrepresented, but you could use population, and you might add GDP, or something like that, but small, medium and large. We have Quebec and Ontario. Quebec is not as big as Ontario but would probably want be in the large category. P.E.I. would probably want to be in the small.
You have to remember, and I've done this, that if you go to the overrepresented region and you start talking about this, be careful. This is not an insensitive matter. This is guaranteed house seats no less than the Senate seats. This is not an easy problem to address. I've given you an answer on what I would like to see from where I am, but people's opinion may differ in Atlantic Canada, and possibly Quebec, with Ontario stuck in the middle as the peacemaker. I think we could make the changes and so on, but it wouldn't be easy. It would require a lot of patience and diligence.
The Senate itself as an entity eschewing partisanship might have difficulty with that; I'm not sure. Maybe it's the ideal entity to try and address that problem, but it will take quite a lot of negotiation and flexibility to achieve what we have to do, because the last time we redistributed seats was in the Constitution Act of 1915. Too much has changed, and you're right, it's out of date.
Senator Eggleton: Yes, you could redistribute the existing seats, but there could be a lot of resistance to that, I understand that, from the provinces that will lose seats. However, you could also add seats. The House of Commons did that. They avoided a lot of redistribution by just adding more seats.
Mr. Hays: That's what Charlottetown did as well for Quebec, ensured a minimum representation in the house for trading off changing the number of senators. Those kinds of things would have to fit into it.
Senator Eggleton: Thank you.
[Translation]
Senator Bellemare: I would like to thank you for joining us today. I also feel very privileged to hear your opinion, given your experience in this august chamber.
As we all know, more and more independent senators will be appointed to the Senate and the leader of the government is now being replaced by the government representative, who also plays the role of government representative in the Senate; the government submits the bills to this representative for consideration. Based on your experience, and given the implementation of the new system, do you think there is still room for an official opposition?
There will certainly still be senators belonging to a given political party, partisan senators that is. However, is an official opposition caucus feasible in a more independent Senate?
[English]
Mr. Hays: There's no other federation or bicameral system that offers us any direction on this. It's usually the first place you look, and I have and there isn't anything. This is unique.
I don't see, quite frankly, how you can preserve the current rules and make them fit 105 independent senators or 98 or whatever it is. This is wild speculation —
[Translation]
— like the Senate in France, with a semicircle with the left and right —
[English]
You choose where you want to sit and change, if you like, but eventually you settle in a spot, particularly if you're here for the rest of your life or for a very long period of time.
That's one of the things that, quite frankly, really concerns me when I consider how important partisanship is in making sometimes bad decisions but making decisions that get people elected, which is important, are not a consideration of a legislative body with an absolute veto over all new and changes to legislation.
So how will you differentiate yourselves? Because you won't all agree, which isn't very surprising. I don't know. What could you do? It's a good question. I'm not giving my suggestion as an answer. I'm just saying that's what runs through my mind. I am looking at it as a lawyer, I guess. Has this happened before? What did they do on that occasion? Not finding anything, what's comparable? What's a bit more like what it is we are creating here? There really isn't anything that I can think of.
There is a third body that has no legislative power in the new government of Indonesia, and I think it's elected, but they have no power. The People's Republic of China have a Chinese consultative group, but they're all communist, so that's relatively easy. Anyway, I don't know. It's a good question. Good luck. I'm really interested, and start talking about it now.
The Chair: Thank you very much. The Honourable Dan Hays came today, principally to deal with Bill S-213. We did that. But we're really delighted with the fact that you were here, that we were able to engage you with your vast experience and knowledge with respect to the Senate. We thank you very much for that. We really appreciate it.
Mr. Hays: Thank you, Mr. Chairman, and thank you, senators. It was a privilege to have had an opportunity to participate in this exchange.
Hon. Senators: Hear, hear!
(The committee continued in camera.)