Hon. George J. Furey:

Honourable senators, the situation presented to the Senate by the introduction of Bill S-4 is complex and delicate. The bill in itself is simple, but its implications are far reaching.

 

We are all aware that in 1979, the Supreme Court of Canada advised government that it may unilaterally alter the Senate with a housekeeping measure. Some have argued, perhaps because of its simplicity, that Bill S-4 is a mere housekeeping measure. It seems to me there was a false note in such a characterization of Bill S-4. It could only be so characterized in the minds of reasonable people if it were truly analogous to the 1965 amendment to impose mandatory retirement at the age of 75.

 

I do not believe, honourable senators, that it is constructive to attempt to turn this debate on the pedantic argument that a mandatory retirement clause is the same as an eight-year tenure. I believe it would trivialize the importance of what has been discussed here, and what will be discussed here, to enter into sterile arguments about whether eight years is too short or 12 years is too long. I suggest that there is no inherently right tenure answer because length of tenure, per se, is not the issue. Whether the Senate can effectively carry out its functions under an eight-year tenure, that is the issue.

 

In 1965, the Honourable John Diefenbaker, speaking as then Leader of the Opposition, explained the logic of the age amendment introduced to the Senate. He compared the Senate to the judiciary and said that since judges were forced into an age tenure so, too, should the Senate.

 

We can carry this reasoning one step further and ask the basic question whether the judiciary in the country would consider it mere "housekeeping" to be reduced to an eight-year term. I am quite confident that the judiciary would balk at such a notion. Honourable senators may wish to review the Provincial Court Judges Reference to appreciate how seriously the judiciary takes the view of independence, even in so small a matter as a minimal reduction in judicial salaries associated with a general government-wide cost-cutting exercise.

 

Many senators have looked beyond the bill to try to understand its implications. Immediately, the issue of Senate election becomes central to a proper understanding of the functioning of Bill S-4. It is disingenuous to assert, and it should not be accepted, that Bill S-4 stands or falls on its own merits. This Senate may well, in its wisdom, choose to pass Senate election legislation and thus be induced by necessity to include concomitant term limit machinery.

 

This is not the same as saying Bill S-4 is unconstitutional. It may be unconstitutional. I agree with Senator Joyal; I believe it is unconstitutional. On its own, Bill S-4 severely impairs the independence of the Senate. That alone makes it unconstitutional. It is part and parcel of election machinery. That alone makes it unconstitutional.

 

I am sure senators would agree that the assertiveness and independence of the Senate would be increased by elections. Elections carry their own legitimacy, and elected senators would have little difficulty asserting their independence under an eight-year term.

 

An unelected Senate restricted to an eight-year term would have no such ability. Consider what George Brown, leader of the early Reform Party, said on term limits:

 

. . . but it has been said that though you may give the power to the executive to increase the numbers of the Upper House, in the event of deadlock you might limit the term for which the members are appointed. I was myself in favour of that proposition. I thought it would be well to provide for a more frequent change in the composition of the Upper House and lessen the danger of the chamber being largely composed of gentlemen whose advanced years might forbid the punctual and vigorous discharge of their public duties. Still the objection made to this was very strong. It was said: Suppose you appoint them for nine years, what will be the effect? For the last three or four years of their term they would be anticipating its expiry and anxiously looking to the administration for the day for reappointment; and the consequence would be that a third of the members would be under the influence of the executive". The desire was to render the Upper House a thoroughly independent body — one that would be in the best position to canvass dispassionately the measures of this House and stand up for the public interests in opposition to hasty or partisan legislation.

 

Honourable senators, parliamentary politics are a fluid and inexact affair. When a newly elected prime minister states that it is time to reform the Senate he must be taken seriously. This does not mean that his plan is necessarily a wise one. It may mean his plan courts a sequel of events we do not want to see again in this country. It may mean the plan needs to be rejected with whatever consequences may follow.

 

There is room to refuse Senate acceptance of Bill S-4 on the simple grounds that it is colourable legislation. It is election machinery legislation without the full details of the election process laid out in that same legislation. On this ground alone, it could be refused.

 

Having admitted the real purpose behind the legislation, I need only quote Mr. Justice La Forest in the Provincial Court Judges Reference when he said:

Purpose is nevertheless relevant. As Dickson C.J. noted in Beauregard . . . legislation dealing with judges' salaries will be suspect if there is "any hint that . . . [it] was enacted for an improper or colourable purpose".

 

Senator Joyal referred to the British House of Lords in his recent speech and gave us some insight into how Westminster views such changes in a modern world. It is a very helpful reference. In this regard, I wish to make a few comments about a pivotal election in British history that might help give us some perspective on how to address and view Bill S-4.

 

In 1906, the Liberal Party of England under Henry Campbell Bannerman won a massive majority and faced a Conservative Lords. It indicated that if the Lords made it impossible for the Liberals to govern there would be need for legislation to restrict them. The Lords ignored the warning and, in fact, rejected the budget of Lloyd George. The government of H.H. Asquith, which succeeded Bannerman, went to an election on the issue of reopening the Constitution on both the Lords and Home Rule.

 

Like our elections, honourable senators, other issues often dominate and obscure central issues or elements. This election was fought more along the lines of free trade and only passing reference was made to the Lords. The Liberals won the election and introduced the now famous Parliament Act of 1910. The Parliament Act removed the Lords' power of rejection of money bills and gave a mere suspensory veto over remaining legislation.

 

The Canadian Senate has never acted quite so precipitously as the Lords in Britain did in 1906; and, if it did, the Commons would not find it as easy to change the Senate by a mere election. The mere fact that a government wants a thing is not sufficient and has never been sufficient in our system of law to bring the thing about. There must be agreement with the stakeholders. It is of the utmost importance to note that the Senate was created on behalf of the regions of this great country, and regional agreement must be obtained for fundamental changes.

 

Honourable senators, I do not believe that any in this chamber fear change. I do not believe that any in this chamber would impede improvement, nor do I believe that any in this chamber would wish to thwart the known will of the Canadian people. However, I do believe that everyone in this Chamber is of the view that change and improvement must be brought about with careful and deliberate debate, and must meet the rigour of constitutional correctness. To allow otherwise would be to descend into political chaos.

 

Fellow senators have all been witness to events on the constitutional plane involving the Senate over the last generation. None of these events changed the Senate. When I listen to people discuss the Senate-related constitutional events that took place between 1979 and 1992, I often hear of the "failure to reform the Senate." That same language is being freighted into Bill S-4 discussions.

 

Honourable senators, there are certain fundamentals that can be acknowledged about constitutional events involving the Senate over the last 28 years. In 1979, the then Prime Minister asked the Supreme Court whether government could alter the composition of the Senate, giving half the appointments to the provinces or, in the alternative, could it be abolished. The Supreme Court said no.

 

The federal and provincial governments spent the next three years amending the Constitution and left the Senate alone. Shortly thereafter, the Charlottetown Accord presumed to radically alter the Senate to suggest equality and election.

 

Honourable senators, I would like to briefly reflect on what Stephen Harper, then the Policy Director of the Reform Party, had to say about Charlottetown. After careful reflection, Stephen Harper insisted on objecting to the accord because "this was no deal." Fifty issues, many on the reform of the Senate, needed to be resolved, including things that needed constitutional amendment.

 

Stephen Harper argued that the Charlottetown Accord was "worse than the status quo." He said:

 

Well our constitution today may be flawed, but surely that is no reason to dump it for something that is undefined and to start negotiating the constitution for years to come. That's exactly what Canadians don't want . . .

 

. . . the public is making clear to us that they'll not support further constitutional negotiations at this time. . . . You're going to have to give up your pet constitutional projects because the public —

 

— and these are the words of Stephen Harper —

 

— is absolutely sick to death of this.

 

Honourable senators, what has changed since then? In the last two federal elections, I did not detect any appetite for reopening the Constitution from any of our leaders. More importantly, it did not seem to me that Stephen Harper had changed his 1992 position regarding the lack of appetite for reopening the Constitution. Every statement that Mr. Harper made then against the Charlottetown Accord applies today to Bill S-4. It is not a complete, self-contained reform. It has been indicated that it is a preliminary part of election machinery. The election-machinery part will no doubt require constitutional change, yet Bill S-4 is being introduced before there is any sense that the Constitution will be changed to carry out full reform.

 

In order to see Bill S-4 in its proper perspective, honourable senators, it is also useful to look again at what the founders of Confederation were thinking about on this issue in the run-up to 1867. The original intention of the Fathers of Confederation regarding the Senate is an important compass point to any argument to change it. Their intention founded our great country, and though it does not bar modern evolution, it does require careful reflection on the only Senate agreement that actually gained national support.

 

The unelected nature of the Senate was one of the most careful and deliberate factors in the constitutional formation conferences of Charlottetown, Quebec and London. Like so many other things in Canada that have stood the test of time, the Fathers of Confederation had actually thought of this issue in exactly the same terms as we are thinking about it and debating it today. This is not to say that their intentions need to be decisive, but we must be careful before we simply dispose of a Constitution we have for one we do not. This, honourable senators, is doing no more than echoing Prime Minister Harper from his own Charlottetown debate in 1992.

 

Historian G.P. Browne said that on September 26, 1864, the Lieutenant-Governor of Prince Edward Island explained to the British colonial secretary what Galt, Cartier and Brown had told him. He states:

 

. . . the discussions of the conference were for the most part conducted in a conversational and informal manner. Two subjects were debated at length: judicial appointments and composition and mode of election of the Senate. It was generally desired that the members of this body should be nominated for life by the crown and with hardly an exception the elective principle as applied to the (Senate) was decidedly condemned . . .

 

. . . the mode of election is far less important than the retention of the seat for life when once obtained. The possession of a seat for life tends, as I have often had occasion to observe, to encourage freedom of thought, speech and action, and it is on this character of comparative independence that one of the main uses of the legislative council is to be found.

 

On October 11, 1864, Sir John A. Macdonald said:

 

. . . with respect to the mode of appointments to the Upper House, some are in favour of the elective principle. More are in favour of appointment by the Crown. I will keep my mind open on that point as if it were a new question to me altogether. At present, I am in favour of appointment by the Crown. While I do not admit that the elective principle has been a failure in Canada, I think we had better return to the original principle.

 

During that debate there were several ideas similar to Prime Minister Harper's idea put before the conference. For example, Coles of Prince Edward Island suggested that the provincial legislature appoint the Senate every eight years. The next day, the original motion of Sir John A. Macdonald was carried unanimously.

 

The Quebec conference ended October 27, 1864, with the resolutions that would, by and large, form the British North America Act. However, in the ensuing three years Britain made several attempts to alter the Senate.

 

On December 3, 1864, the British colonial secretary wrote the Canadian Governor General stating:

 

. . . the second point which Her Majesty's Government desires should be reconsidered is the constitution of the legislative council . . . . They appreciate the considerations which have influenced the conference in determining the mode in which this body so important to the legislature . . . . But it appears to Her Majesty to require fuller consideration whether if members be appointed for life . . . .

 

The British government disagreed with the Canadian idea of Senate tenure for life. The disapproval was conveyed to the delegates who meanwhile were in their legislative assemblies defending the 1864 resolutions.

 

By July 24, 1866, Her Majesty had more to say on the legislative council. In a letter to Lord Carnarvon, Governor General Monck states that he:

 

. . . objects to the legislative council being composed of members appointed for life, with their number fixed.

 

The London Conference opened in England on December 4, 1866. It is clear that the delegates were facing pressure from the English government to deal with the issue of Senate tenure.

 

As one may expect, their minds were focused on the one issue that the Crown had identified as a problem. I would like to quote only Archibald from Nova Scotia to sum up the tenor of the debate that took place. He said:

 

. . . this lies at the root of our whole scheme the spirit of which is that each province shall be sectionally represented in the legislative council. The Upper House may disagree with the House of Commons. Its value will be that of occasional obstruction.

 

At the end of that conference, on Christmas Eve, 1866, the delegates submitted their revised resolutions.

 

By February 2, 1867, the third draft of the BNA Act included tenure for life.

 

I realize, honourable senators, that this has been a somewhat tedious and, for some, perhaps a pedantic exercise in raking historical ashes. However, the exercise is compelling for one important reason. The Senate was not some arbitrary, undemocratic concoction of unthinking, anachronistic, 19th century men. There was careful and explicit reasoning for establishing the tenure term as it was established. There was explicit reference to possible appointment for nine years and it was explicitly rejected.

 

Now we are faced in the Senate with Bill S-4 as the decided will of the Prime Minister and the Conservative government, and it must be given respectful consideration. However, it seems to me that it is deficient. The origin of the country was a long dialogue between component parts where eight-year Senate tenure was reviewed and decidedly rejected. The various attempts at Senate reform in the 20th century failed to gain national support and, more importantly, had negative effects on the country's stability. Decisions of the judiciary suggest that such a term limit would be rejected by the judiciary. Decisions of the judiciary further suggest that colourable legislation is invalid. The lengthy and thoughtful debates of Galt, Tilly, Langevin, Cartier, Brown and Macdonald, to name just a few, suggest otherwise as well.

 

Honourable senators, Bill S-4 is not a piece of mere legislation and, given its historic importance, does not appear to manifest the decided will of the country to make this historic change. I do not object to such a change where the deliberate will of the country is manifest, but I urge all honourable senators to await that occasion before agreeing to Bill S-4.

 

As an unelected legislator, I do not feel competent to second-guess the Prime Minister on the ultimate wisdom of electing the Senate. If the country wishes it after a meaningful and reflective debate, it will happen. However, the explicit intentions of the founders of our great country cannot be thrown over by a mere piece of questionable legislation.

 

Walter Bagehot was a famous English journalist and writer of the 19th century. He was an early editor of The Economist magazine and wrote the English Constitution. Christopher Moore, the writer of the recent Canadian book, 1867: How the Fathers Made a Deal, identifies Bagehot as taking a special and sustained interest in the formation of the British North America Act in 1867. Incidentally, Bagehot was worried about the Canadian Senate creating perpetual deadlock with the Commons.

 

Nevertheless, it was Bagehot who properly identified the effective reality of modern parliamentary government in Britain and Canada, and it is in light of his following comments that we must be prepared to protect the Senate:

 

. . . the most dangerous of all sinister interests is that of the executive government, because it is the most powerful. It is perfectly possible — it has happened, and will happen again — that the Cabinet, being very powerful in the Commons, may inflict minor measures on the nation which the nation did not like but which the nation did not understand enough to forbid. If therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the government will be the better, the retarding Chamber will impede minor instances of parliamentary tyranny, though it will not prevent or much impede revolution . . .

 

. . . it is almost the same thing to say the House of Lords is independent. It would not be powerful, it would not be possible, unless it were known to be independent. The Lords are in several respects more independent than the Commons. Their judgment may not be so good a judgment but it is emphatically their own.

 

Honourable senators, it seems to me that with these points in mind the best course for the Senate to take is a simple rejection of Bill S-4.

 

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