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Inquiry on the Review of Legislation in the Senate of Canada

Inquiry on the Review of Legislation in the Senate of Canada

Inquiry on the Review of Legislation in the Senate of Canada

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Hon. Percy E. Downe rose pursuant to notice of February 26, 2019:

That he will call the attention of the Senate to:

(a)The regrettable failure of the Senate, on occasion, to perform its important duty of providing careful review of legislation. Many times over the years, senators have been urged and pressured by members of the government of the day to pass legislation as quickly as possible. However well intentioned, rushing legislation can have a long term negative impact;

(b)The example of the report last week by the Parliamentary Budget Officer “The cost differential between three regimes of Veterans Benefits”, which once again serves as a reminder of the rapid passage in 2005 of Bill C-45, the legislation enacting the New Veterans Charter which replaced the Pension Act;

(c)Bill C-45, which passed though both Houses of Parliament with a haste that did not reflect the serious impact of such legislation;

(d)The fact that having passed the House of Commons in two minutes, so quickly that second reading, committee study and third reading were deemed to have taken place over the space of those two minutes, Bill C-45 came here, where the four hours plus of chamber and committee debate was vastly more study than happened in the other place, but still in no way constituted the sober reflection and analysis that is our duty;

(e)The fact that the report of the Parliamentary Budget Officer last week demonstrated that the New Veterans Charter did not work as its proponents had promised, and as a result of senators’ failure to properly examine Bill C-45, disabled veterans and their families paid, and continue to pay the price. As the Parliamentary Budget Officer says in his report “From the perspective of the veteran, virtually all clients would be better off if they were to receive the benefits of the Pension Act.”, which the New Veterans Charter replaced;

(f)The fact that the Senate was in such a rush to pass the Bill that we referred it for a single meeting to the next committee that was scheduled to sit, not Defence or Veterans’ Affairs, but National Finance. And at that meeting, we were warned, but failed to heed the caution voiced by Sean Bruyea, retired Canadian Forces captain and longtime veterans’ advocate who testified, “We all know that the government wants to be seen as honouring veterans, but that does not necessarily mean that their veteran’s charter is free of error… We believe disabled veterans and the CF would rather have it right than have a flawed and unjust charter right now”;

(g)The struggle we constantly face in this chamber, as every minister wants their bill passed, often with a real or imagined deadline looming, whether it be international obligations, public messaging, the summer break, or an election. Regarding the latter, it is worth recalling that the request to pass Bill C-45 quickly was so it would not die on the Order Paper prior to the 2006 Election;

(h)The lessons of the New Veterans Charter experience – that the Senate’s failure to do its job resulted in untold millions of dollars not being paid out to disabled veterans and their families. These were Canadian Forces members injured in the service of Canada;

(i)The opportunity we had to correct the legislation in 2005, and failed to do our job. Senators must reflect upon their obligation to provide sober second thought and to pass, amend, or reject legislation based solely on its merits; and

(j)Rather than simply standing and repeating platitudes in the days before Remembrance Day every year, let us work to remember them in our actions rather than empty words.

He said: As honourable senators may recall, my inquiry is about finding balance for the Senate between delaying legislation and rushing legislation. Today I will talk about what happens sometimes when we don’t approach the duty to review legislation carefully.

Honourable senators, by now, even the newest senators have experienced the desire of the government and their agents to pass government legislation quickly. Although it is understandable for them to want their bills to pass, that does not remove the Senate’s right — and duty — to examine those bills and check them for mistakes and unintended impacts.

Over the years, senators have been urged, pleaded with and otherwise encouraged by members of successive governments to pass legislation as quickly as possible. Again, this is understandable. However, I believe we should take the time we need, both as a matter of principle and because we have recently received a reminder of what can happen when we fail to do so. The recent report by the Parliamentary Budget Officer about changes to disabled veterans’ benefits under the New Veterans Charter serves as a good lesson on how rushing legislation can have a long-term negative impact.

I have described the course of events in previous speeches and I will briefly highlight them here. In 2005, then-Prime Minister Paul Martin, then-Opposition Leader Stephen Harper and then-New Democratic Party Leader Jack Layton were in the Netherlands to attend ceremonies commemorating the sixtieth anniversary of the end of the Second World War. On the airplane flight back to Canada, they decided to assist veterans and their families by passing the New Veterans’ Charter legislation as quickly as possible.

In that respect, they succeeded. From the time it was first spoken to in the House of Commons to the bill receiving Royal Assent, three days passed. The amount of actual debate in chamber and committee was less than five hours. Only two minutes of that five-hour debate was in the House of Commons; the balance was in the Senate.

To be clear, everyone acted with the best of intentions, but we all know what road is paved with good intentions. We did a lot of paving in the Senate leading to the passing of the Veterans charter. Put simply, the Senate failed in its duty. We did not study the legislation carefully. We did not correct the mistakes in the legislation. We were rushing to do our job. Sometimes, many times, it is precisely our job not to rush.

We can’t say we weren’t warned. At a meeting of the National Finance Committee where the Senate sent the bill, because they were in a rush, rather than to the Veterans Affairs Subcommittee, Sean Bruyea, a retired Canadian Forces captain and longtime veterans advocate, testified before the committee. He stated:

We all know that the government wants to be seen to be honouring veterans, but that does not necessarily mean that the veterans’ charter is free of error. . . We believe that disabled veterans and the CF would rather have it right than have a flawed and unjust charter right now.

Unfortunately, we did not heed his advice. The recent report of the Parliamentary Budget Officer indicated this failure of the Senate has cost disabled veterans and their families millions in lost benefits. These veterans and their families suffered and did not receive the benefits to which they were entitled, and that is the Senate’s fault.

More recently, we had another example on how we have been urged to act more quickly than we would have preferred. At the November 22, 2016 meeting of the Senate Foreign Affairs Committee, then International Trade Minister Freeland testified in support of enabling legislation for a World Trade Organization Trade Facilitation Agreement, a TFA that Canada had signed. As is so often the case, there was the desire to pass the legislation with all speed.

The minister stated she believed Canada should ratify it as quickly as possible. She told the committee that for the TFA to come into force, 110 WTO member countries need to ratify it. At that date, 96 countries had ratified it. Minister Freeland said:

It’s really important for Canada’s status as an effective and energetic participant in the multilateral trade community and in the WTO to be one of the countries whose ratification of the TFA acts to bring it into force.

It might bear noting that at this point the bill had been in the Senate for five weeks. It took 27 weeks for it to go through the House of Commons — a bill, I might add, that enjoyed the support of all the major parties in the house. So the need for energetic participation was rather late in coming.

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At the meeting of the committee, of which I was a member at the time, I questioned the rush and the need for such a tight timetable, as I had additional questions. I asked the minister:

If Canada ratifies after the 110, we’re still members [of the agreement] and I appreciate there is some face saving, as the minister indicated earlier, but does the minister anticipate 14 countries to ratify in the next week?

She responded, “Absolutely.”

And when I expressed further doubt, she said: “Yes. Everyone has been acting on this.”

In other words, it was crunch time, and we had better act quickly.

I set aside my concerns in light of the minister’s sense of urgency. The committee had one more meeting on the bill, reported it back on Thursday, November 24, and it was passed in this chamber two sitting days later on Wednesday, November 30. That’s a total of six weeks in this chamber, less than a quarter of the time it spent in the House.

When did the WTO finally get 110 ratifications? They did so on February 22, 2017, three months to the day after the minister said she was absolutely sure it would take only a week.

The purpose of this little story isn’t to challenge the minister’s judgment or powers of prediction. She was merely doing what all ministers do, which is her utmost to get her legislation passed. Every minister wants their legislation passed. They’re always convinced that theirs is a good bill that is perfect the way it is, and “anyway, we can fix any problems with it later, after it’s passed.”

If our newest colleagues haven’t heard such arguments yet — with regulations or other adjustments often promised but rarely delivered — I’m sure they will, especially with an election looming. In fact, it is worth remembering that the need to pass the New Veterans’ Charter quickly was so it would not die on the Order Paper prior to the 2006 election.

One example of how we did perform our duty comes from the early days of this Parliament. Those of us who were here in December 2015 may recall Bill C-3, an appropriation bill granting sums of money to the government. Once again, the House of Commons acted with very impressive speed: first reading, second reading, Committee of the Whole and third reading, all in 17 minutes. Of course, such speed is possible when you don’t actually look at the bill.

It was only when Bill C-3 came to this chamber that it was noted — by Senator Day, as a matter of fact — that the bill wasn’t all there. A schedule referred to in the bill was not included in the bill. Blaming “administrative errors,” the House of Commons forwarded a corrected version the following day. Needless to say, there was no mention in the other place that it was the Senate that spotted and corrected the error.

Colleagues, nowhere in the Constitution does it say that the purpose of the Senate is to pass government legislation or private members’ bills as quickly as possible. No matter how good a bill’s proponents think it is, it always needs to be reviewed. And if the New Veterans’ Charter has taught us anything, it’s that speed is no guarantee of perfection, and that haste, however well-intentioned, is certainly its enemy.

The Senate is currently devoting a great deal of time debating internal procedures and how we structure our business. It is my view that rather than spending our time on this, we should be paying attention to some of the initiatives being undertaken in other countries with regard to openness, transparency and improving the review of legislation before their respective parliaments. Rather than having a detailed discussion about the personal frustrations of the 105 members of this chamber, we should spend our time and efforts to improve legislation for the citizens of Canada and to follow-up on legislation already passed.

For example, an important initiative toward more open government is to select bills already passed by Parliament for a five-year review and to conduct committee hearings to determine if the legislation achieved the objectives outlined by the government when it was introduced. The Senate might come up with recommendations to further improve such legislation as a result of this process.

A very small number of bills currently have such a mechanism providing for five-year automatic review. Others — again, not many — have a sunset provision where, if passed, the government has to implement the legislation within a given period or reintroduce it.

As I said, these last two examples are more the exception than the rule.

In addition to carefully reviewing proposed legislation before us, these suggestions would lead to the Senate taking a more active role in examining the impact of legislation already passed.

In closing, honourable senators, we would do well to once again be reminded of the words of Sir John A. Macdonald:

There would no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House.

If all we do is approve, then our approval means nothing. Let us remember that as we go forward. Thank you, colleagues.

Hon. Yuen Pau Woo: Thank you, Senator Downe, for the timely reminder of the need to take the time to review bills.

Can you tell us what you have learned about the flaws in the trade facilitation agreement since we passed it in this chamber that have caused you to have second thoughts about the pace at which we are able to get it through this chamber?

The Hon. the Speaker: Senator Downe, your time might expire before you can answer.

Senator Downe: I will be very brief.

My concerns were prior to passing it. I had a host of questions, particularly from people outside the Senate who wanted me to pursue with some vigour, none of which we were able to do, unfortunately, because the rush was on to get it done.

As to the follow-up, it raises a good point about the five-year review I spoke about. For example, we have now passed CETA, the Canada-Europe trade agreement. I’ve heard from a host of people in industries about quotas that seem to be springing up unofficially on the European side that are reducing the export levels we had hoped to achieve. In fact, I had a European ambassador say to me recently, “What is Canada doing? Why are we at 85 and 95 per cent in some sectors, and Canada is at 5 and 7?” That’s the type of thing we could be looking at if we did a five-year review. I currently put a question to the Library of Parliament on that very topic.

If we had more time, I could go further.

Senator Omidvar: Senator, thank you for your comments. You talked about undesirable results when we rush things through. I wonder if you could reflect on the opposite side of rush, which is delay. There are implications when we also delay the passage of bills, when we take so much time to deliberate, discuss, delay and never decide.

Today, we’ve had a rather unusual message come from the House of Commons: unanimous agreement by all members of the House of Commons to proceed on two bills. I wonder if you could reflect on the dangers of undue delays as well as undue rush.

The Hon. the Speaker: Senator Downe, before you begin, your time is expired. Are you asking for five minutes?

Senator Downe: Sure.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Downe: The hockey game doesn’t start for a few hours, so we have plenty of time.

Senator, at the beginning of my remarks, I mentioned the balance between haste and delay, and today’s speech was on haste. Stay tuned for chapter 2 at a later date.