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Stéphane Dion, MP

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What To Do With the Senate? The Trudeau Solution

Posted on April 17, 2014 | No Comments

Dear Readers,

On April 16th, 2014, at the Munk School of Global Affairs in Toronto, I did a presentation as part of the panel entitled “What are We Going to Do with our Senate?”, organized by The Churchill Society for the Advancement of Parliamentary Democracy.

I presented my thoughts on the validity of establishing a less partisan and more independent Senate in line with Liberal Leader Justin Trudeau’s objectives, and on the ins and outs of such a reform.

Please find below my remarks. As always, I will be very pleased to read any comments you might have.

Have a good read!

Stéphane Dion
—————–

What To Do With the Senate?
The Trudeau Solution

 Notes for an Address by the Honourable Stéphane Dion, delivered on April 16, 2014,
at a discussion panel entitled On Parliament 2014: “What Are We Going To Do With Our Senate?” hosted by the Churchill Society for the Advancement of Parliamentary Democracy at the Munk School of Global Affairs, in Toronto, Ontario, Canada.

 

The Honourable Stéphane Dion, P.C., M. P.
(Privy Council of Canada and Member of Parliament for St-Laurent / Cartierville)
House of Commons, Ottawa
Email : stephane.dion@parl.gc.ca

 

Each one of the three major national parties has its own plan for the Senate:

  • The Conservative Party wants an elected Senate and if that fails,  its abolition;
  • The New Democratic Party wants the Senate abolished;
  • The Liberal Party proposes to reform the Senate to make it more independent and less partisan.

It is almost certain that only the Liberal plan is realistic: neither the election nor the abolition of the Senate are likely to happen.

Why? Because to be able to elect Senators or abolish the Senate, we would need to amend the Constitution. That is what the Supreme Court is almost sure to say in a soon to be released opinion. Almost all constitutional experts expect the Supreme Court to rule, as did the Quebec Court of Appeal, that Parliament cannot unilaterally change the nature of the Senate. Making it an elected Chamber would require, in addition to the agreement of Parliament, the concurrence of seven provinces representing 50 percent of the population of the provinces (the 7/50 rule); abolishing it would require the unanimous agreement of Parliament and the ten provinces. Admittedly, the Supreme Court might rule that the 7/50 threshold will do for abolition but it is more likely that it will opt for unanimity.

Well, abolition is far from eliciting unanimity among the provinces. And the 7/50 threshold will be very difficult to reach, all the more since at least one province, Quebec, has said clearly that there is no way it will enter into constitutional negotiations on the sole issue of the Senate. Quebec intends to put forward its own traditional demands in terms of new powers and recognition of its distinct or national character. And the Aboriginal Peoples will also want their say.

Could we proceed without Quebec’s agreement? If that is their plan, the Conservatives and the NDP must clearly say so. They must also admit that they plan to bypass the Regional Veto Act or do away with it. That Act gives veto power over constitutional changes to Quebec and our country’s other four regions.

When the NDP and at least one Conservative minister raise the possibility of holding a referendum on the abolition of the Senate, they must tell us if they will hold it even if one or more provincial governments challenge its legitimacy. They must also specify what they would do in the case of a mixed outcome, with a national majority vote for abolition and at the same time, one or more provincial majority votes against. It is almost certain that such a referendum would be both costly and fruitless. In one word: useless.

The bottom line is that the Supreme Court opinion will most likely force the Conservatives and the NDP to abandon their plans for the Senate or subject Canadians to a referendum and constitutional mega-negotiations; two scenarios for which Canadians have no appetite whatsoever.

Mr. Harper claims it is possible to have elected Senators without changing the Constitution; in all likelihood, he is wrong. But even if this were possible, would such a reform be desirable? No, because it would be irresponsible to establish an elected Senate without first having formulated a conflict resolution mechanism. Conflict is unavoidable between two elected Houses that can both speak on behalf of the people and are equally capable of paralyzing each other – as exemplified by the US Congress. Moreover, the number of Senators allocated to some provinces would have to be changed because with the current distribution, Alberta and British Columbia are significantly under-represented. This under-representation would become untenable in the context of an elected Senate exercising its constitutional powers to their full extent rather than with the moderation shown, since Confederation, by a Senate bereft of any electoral legitimacy.

The aforementioned reforms would require a constitutional amendment. That is why every Prime Minister who preceded Mr. Harper have all opposed moving to an elected Senate without the necessary constitutional amendments, needed to rebalance the distribution of Senators per province and the division of roles between the Senate and the House of Commons. Mr. Harper’s unilateral reform project is irresponsible; thankfully, at least he finally accepted to seek the Supreme Court’s opinion after years of pressure by the Liberal opposition.

What about abolishing the Senate? Even if that were possible without amending the Constitution, it is far from certain that it would be the best choice for Canadians. Abolition would deprive them of what the Fathers of Confederation wanted the Senate to be: an Upper Chamber that scrutinizes House of Commons Bills in order to improve them, the famous “Chamber of sober second thought”.

This was the useful role that the Senate had often played since Confederation, until Prime Minister Harper put an end to that role by subjecting the Senate to a relentless and unprecedented level of party discipline.

Yet in playing that role of Chamber of sober second thought, our Senate has long shown the amount of self-restraint and spirit of compromise that were required. Between 1994 and 2008, the Senate amended 9 percent of the Bills approved by the House of Commons and only explicitly rejected two out of 465 Bills.[1] The Senate acted exactly how a Chamber of sober second thought is expected to: year in, year out, it amends from 8 to 10 percent of the Bills proposed by the House of Commons and almost never rejects one. These numbers do not include the many amendments suggested by Senators to House Members – and adopted by the House of Commons – even before the Bills are officially submitted to the Senate. And let us not forget the many policy papers and guidance documents, always useful and often outstanding, produced by Senators.

Even as this conference unfolds, the Senate is playing a useful role particularly in regards to the debate around the controversial Bill C-23 (Fair Elections Act).

Having said that, it is clear that Canadians are fed up with the ethical and financial scandals caused by some individual Senators. Canadians can, and rightly so, no longer tolerate the kind of patronage and excessive partisanship that smears the Senate’s reputation and discredits its usefulness, and which Prime Minister Harper has bolstered to unparalleled and intolerable levels. Canadians have clearly said it: reforms are needed.

Numerous reforms are possible without touching the Constitution, by increasing the depth of the Senate’s essence without changing it. That is precisely the path that we, Liberals, are proposing to take. Our commitment is to do all we can to ensure that the Senate can discharge, in the best possible way, the responsibilities assigned to it by the Fathers of Confederation: to act as a Chamber of sober second thought, one that scrutinizes Bills, detects their errors, shortcomings and inaccuracies and based on its findings, suggests useful amendments; to be an Upper House whose members are more likely to acquire valuable experience compared to their colleagues in a House of Commons whose composition can change rapidly election after election; to be an Upper Chamber whose members can devote much more time to their work as legislators than their colleagues in an elected Chamber who must also cope with a heavy constituency workload while defending their party’s interests; to be an Upper Chamber attuned to the needs and aspirations of the regions and minorities of our diverse country. In short, we need a Senate that is less partisan, more levelheaded and more independent, composed of high-level, competent, ethical and highly qualified legislators.

Some reforms will be easy to do: in order to prevent improper expenditures, let us demand the highest standard of transparency and conduct regular and statutory external audits; let us reinforce Senate session and committee attendance requirements; and let the selection of Committee Members and Chairs be an internal Senate matter, with no interference from the Prime Minister.

However, guaranteeing Canadians a less partisan and more independent Senate will require going even further; that is what Liberal leader Justin Trudeau plans to do. The Liberal plan consists of two phases. The first phase is now a reality; the second will be implemented if in the next federal election, Canadians elect for themselves a Liberal government.

First phase: since January 29, 2014, Senators are no longer members of the Liberal caucus; only Members of Parliament are. Henceforth, Senators have no organic ties with the Liberal caucus, the Leader or his office; their votes are no longer whipped. As Parliamentarians, Senators may organize themselves as they see fit; as citizens, they are entitled to support any political party of their choice. But they no longer hold any organizational or financing responsibilities within the Liberal Party of Canada. In this way, Senators are exempted from any partisan work and better able to focus on their Parliamentarian and legislative work. Justin Trudeau invited the Prime Minister to do the same with his own caucus; unfortunately, although not surprisingly, Mr. Harper refused.

Here we are then, with a Senatorless Liberal caucus and Senators liberated from partisan obligations. This simple change is the most important Senate reform to be made since Confederation. This we owe to Justin Trudeau’s leadership. And the Liberal Leader will go even further if Canadians elect him as their Prime Minister.

The second phase of his reform provides for the establishment of a non-partisan senatorial appointment process, intended to increase the likelihood of the Senate being made up of outstanding, highly qualified legislators who are able to do their job with complete independence and whose constant focus is the well-being of all Canadians and the permanence of Canadian democratic institutions.

What now needs to be done is to define what this non-partisan appointment process will be. It will not be easy but the upcoming Supreme Court opinion is likely to help us draw its broad outlines. And several Canadian parliamentary institution experts have been working on the issue for many years. Those experts with whom I have been in contact since January 29, 2014, advocate forming a Senatorial Selection Council such as the one that was put in place to select certain members of the United Kingdom’s Upper Chamber.

This selection process will have to be crafted with the utmost care. Answers will have to be found to difficult questions, such as:

1)  Who should have the power to appoint Senators?

According to the Constitution, the Governor General has this power. By convention, the Governor General acts on the Prime Minister’s recommendation. Would we want the Selection Council to submit its choices directly to the Governor General, in order to ensure a clearly non-partisan process? Or would we rather have the Prime Minister continue making the final choices, out of a short list (from three to five candidates) prepared by the Selection Council, so that the principal elected official – according to our democratic system – retains this responsibility? The latter process, which would style the Council as an application screening mechanism, would preserve the Prime Minister’s final authority; it would probably be more democratic and constitutionally safer.  We would need to ensure that the Prime Minister be obligated to justify his/her appointments through a declaration in the House of Commons and an appearance before the Senate.

2)  Who should choose who sits on the Selection Council?

The risk of partisanship is too high if the Prime Minister can do it alone. So, should he/she be required to come to an agreement with the Leader of the Opposition? Should he/she have his/her choices vetted by the Senate and House of Commons? An alternate method would be to let the Speakers of both Houses make those choices, the way the Speaker of the House of Commons selects the electoral commissions tasked with redefining the boundaries of federal electoral districts. Should Council members have refrained from any political activity in the previous five years, as is the case in the United Kingdom? Should the Council’s composition stay the same for a given period, or should a new Council be named every time a new seat needs to be filled – which could well happen ten times a year? Would it not be necessary to modulate the Council’s composition according to the province of origin of the Senator awaiting selection? Should that province’s government or legislative assembly – or the Speaker of that Assembly – be invited to participate in the selection of the Council members?

3)  How should the Selection Council consult Canadians?

Should Canadians be invited to submit names to establish a pool of candidates? Should the Council hold public meetings? What organizations and associations should be consulted? Should there be a time limit for such consultations? Should some candidates and if so, which ones, be formally interviewed? For the sake of transparency, should the Council’s advice and recommendations be made public?

4)  What criteria should guide the selection of Senators?

Some criteria are obvious: to be successful, candidates would have to demonstrate exceptional competence in their respective field, have a history of outstanding service to their communities, exceptional working capacity, flawless honesty and integrity, the wisdom and sound judgment expected of a legislator. Would it be conceivable to rule out, a priori, anybody who has ever joined a political party? Rather than the absence of party allegiance, would not a better criterion be open-mindedness and an ability to base one’s decisions on facts rather than ideological preconceptions or personal interests? Also, care will have to be taken to ensure fair representation of women and minorities. Certain minorities, such as First Nations and official language communities, have historical ties to the Senate. Finally, it will be necessary to select Senators who understand that the role of a Chamber of sober second thought is to propose improvements to legislation without disputing or usurping the elected House’s legitimate predominant role in a democracy. The aforementioned nomination criteria could very well be mentioned explicitly in a code of ethics and a “Role of Senators” document that every new Senator would pledge to respect.

By coming up with the right answers to these questions, we could give Canada an independent and effective Upper House, one that reflects our country’s diversity and is made up of competent and thoughtful Senators, an Upper House that can and knows how to fulfill the task assigned to it by the Fathers of Confederation: completing the work of the House of Commons – a Senate of which Canadians can be proud.


[1] Andrew Heard, « Constitutional Doubts about Bill C-20 and Senatorial Elections », in Jennifer Smith (ed.), The Democratic Dilemma. Reforming the Canadian Senate, Institute of Intergovernmental Relations, School of Policy Studies, Queen’s University, McGill-Queens University Press, Montreal and Kingston, 2009, pp. 81-96)

Statement on the CBC/ Radio-Canada cuts, 11 April 2014

Posted on April 11, 2014 | No Comments

11 April 2014 - CBC / Radio-Canada serves a key role in the showcase and promotion of our Canadian identity and landscape. Offering original programing across the country, our public broadcaster allows all Canadians, including both Francophone and Anglophone minority communities, to have access to Canadian content in the language of their choice.

The April 10, 2014, announcement is an unfortunate yet inevitable consequence of cuts made by the Harper government.

These cuts have severely undermined CBC/Radio-Canada’s capacity to fulfill its mandate, especially as they work to re-align operational models to reflect 21st century program and consumption demands.

Our party remains steadfast supportive for CBC/Radio-Canada to have stable, longer-term funding so as to evolve with today’s digital world and continue to broadcast unique Canadian programming from coast-to-coast-to-coast in French and English.

The Liberal Party of Canada believes in a public broadcaster and sees CBC/Radio-Canada as a vital Canadian institution that should be protected and preserved.

The Hon. Stéphane Dion
Liberal Critic for Canadian Heritage and Official Languages

Question Period: Democratic Reform (April 9th, 2014, House of Commons, Parliament of Canada, Ottawa)

Posted on April 11, 2014 | No Comments

Dear Readers

On April 9, 2014, I asked the Minister of State for Democratic Reform to respond to the withering criticism that was heaped upon him by Canada’s former Auditor General Sheila Fraser. You will appreciate the Minister of State’s non-response.

As always, I will be very pleased to read any comments you might have. Happy reading!

Stéphane Dion
—————-

Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.):

Mr. Speaker, the minister still has not responded to Sheila Fraser. I am giving him the opportunity to do so. What does he have to say about the statement she made in response to the minister’s blatant attack on the Chief Electoral Officer? Ms. Fraser said:

This does not do anyone any favours. It undermines the credibility of our institutions. Ultimately, if this goes forward, we will all pay the price because no one will have any faith left in the government, the Chief Electoral Officer or the democratic system.

What does he have to say to Ms. Fraser?

Hon. Pierre Poilievre (Minister of State (Democratic Reform), CPC):

Mr. Speaker, we think it is reasonable to expect Canadians to bring ID when they vote. Now, it is not necessary to bring photo ID. Canadians can choose from 39 options. The fair elections act will require Elections Canada to inform voters of these options so that they can all vote.

Closure and Consolidation of DFO libraries: More questions than answers

Posted on April 10, 2014 | No Comments

Dear Readers, Please find below a text in which I denounce the closing of seven scientific libraries at Fisheries and Oceans Canada. As always, I will […]

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Statement in the House: Quebec Provincial Election (8 April 2014, House of Commons, Parliament of Canada, Ottawa)

Posted on April 10, 2014 | No Comments

Dear Readers, On April 8, 2014 in the House of Commons, I congratulated Premier Couillard and Quebec’s new Liberal government, and noted that this was good […]

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Question Period: Judge Nadon’s appointment (24 March 2014, House of Commons, Parliament of Canada, Ottawa)

Posted on March 25, 2014 | No Comments

Dear Readers, On March 24, 2014 at Question Period, I argued that not only was Judge Nadon’s appointment to the Supreme Court an unprecedented boondoggle but […]

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McGill Law Journal’s Annual Francophone Conference: Le rôle des juristes dans les débats publics avec l’Hon. Stéphane Dion (24 February 2014)

Posted on March 25, 2014 | No Comments

Dear Readers, On February 24, 2014, I spoke at the McGill Law Journal’s Annual Francophone Conference, which this year focussed on the role and influence of […]

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Federalism in the Face of Secessionist Pressure

Posted on March 17, 2014 | No Comments

Dear Readers, From March 9 to March 13, 2014, I was invited to Spain by Federalistes d’Esquerres, a gathering of Catalans and other Spanish citizens who […]

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“Our country’s economic and social capacity can easily accommodate more than 1,300 Syrian refugees.” (March 12, 2014)

Posted on March 12, 2014 | No Comments

Dear readers, An article published on the CBC News website, which you’ll find here, shows that the Harper government has failed to keep its promise to […]

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Return of the Referendum Nuisance?

Posted on March 3, 2014 | No Comments

Dear Readers, On March 1st, 2014, La Presse published a text in which I highlight the political uncertainty that would reign should a majority PQ government be elected […]

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