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Motion—Disposition of Bill C-377

Motion—Disposition of Bill C-377

Motion—Disposition of Bill C-377

Motion—Disposition of Bill C-377

Published on 26 June 2015
Hansard and Statements by Senator James Cowan (retired)

Hon. Pierrette Ringuette:

Honourable senators, I do not have a speech prepared, but I know the bill and the process surrounding it like the back of my hand.

Since some of our colleagues voted against the Rules of our institution, it is not surprising that since October 2013, they haven’t wanted to abide by the decision they themselves made in June 2013, and they still don’t. If it respected the debates of this institution and the outcome of the votes that follow, the government could have dealt with this bill by immediately sending it back to the House of Commons in October 2013, so that the House could have first made the necessary amendments to make the bill constitutional.

Dear colleagues, seven Canadian provinces consider this bill to be unconstitutional, and a vast majority of Canadians think it infringes on their privacy.

I was appointed to the Senate 12 and a half years ago, and I don’t understand how senators, who are here to provide sober second thought on behalf of the regions, provinces and Canadians as a whole, are incapable of studying a bill without engaging in partisanship. It’s quite clear that this bill is unconstitutional. That’s our primary mandate here, especially since this is a private member’s bill and therefore the Department of Justice has not reviewed the constitutionality of the bill.

Government officials here in this chamber or across the street do not seem to have an interest in respecting the rule of law or the decisions of this chamber. Politics is the priority, plain and simple. Our chamber — individually and collectively — seems to be filled with nothing more than puppets.

This bill was debated for more than two months in May and June 2013, and we decided to amend it. Today, Conservative Senators Doyle, Greene, Lang, McIntyre, Nancy Ruth, Neufeld, Seidman and Smith (Saurel) voted against a bill that they supported in June 2013. It is the exact same bill. How do you explain that? The only conclusion I can draw is that they followed the directives of the Prime Minister’s Office. This institution does not exist to please the Prime Minister’s Office. It exists to give a voice to the provinces and the regions.

Seven provinces could easily decide to vote in favour of major changes to this institution. According to the Supreme Court, they would have the majority, and you are not even capable of being consistent with your own decision of June 2013.

I’m extremely disappointed, and I’m especially disappointed in my colleagues from New Brunswick. New Brunswick is a small province that doesn’t have very many unionized workers.

Senator Plett, you may decide to follow the Prime Minister’s orders, but I don’t have to do so.

I am really terribly disappointed by the attitude that pervades this chamber. I realize that we are going into an election — don’t worry, I know what that means, for I went through four elections — but we aren’t here to vote according to the Prime Minister’s wishes.

You have been sitting on this bill since October 2013, you just voted against a ruling by the Speaker, who was appointed by your leader, and I can’t help but wonder just how low you people are willing to sink.

That being said, honourable colleagues, regarding Bill C-377, I hope you will stand up and vote in the best interests of each of the provinces and the regions you represent.

I requested that we resolve ourselves into Committee of the Whole in order to hear from witnesses whom the chair of the committee didn’t want to hear. That would have been the least we could do. If we can’t listen to the people who will be affected by a bill and hear what they have to say, that is very embarrassing.

In any event, I can only say that I am extremely disappointed that you cannot see beyond partisanship, assume your responsibilities and do your job. After all, that is what Canadians are paying you to do. You are paid to give sober second thought to these bills.

Perhaps some of you are anxious to begin your holidays, but I believe that the constitutionality of the bills before us is more important than that.

Mr. Speaker, esteemed colleagues, I will reiterate my opposition to this bill. I will also repeat how disappointed I am that the Senate of Canada is not respecting the will of the majority of Canadians. That is a very low blow, and our institution does not deserve this.

You say that you want to save the institution? The only way to save the institution is to fulfil our role and our responsibilities. At present, I cannot say that most senators are doing so.

I am truly disappointed. I hope that you will give this more thought in the next few hours, and if you cannot provide sober second thought in this chamber, you could envisage other options.

Hon. James S. Cowan (Leader of the Opposition):

Mr. Speaker, I do want to participate in the debate on this motion. I had expected my friend Senator Martin would speak in support of her motion. I’d be happy to listen to her first and then speak after her.

The Hon. the Speaker: Whoever stands, I will recognize. Honourable Senator Batters.

Senator Cowan: If that’s the case, I would have expected Senator Martin would speak in support of her motion. If she’s not going to speak, then I will speak.

The Hon. the Speaker: Honourable senators can rise if they wish.

Hon. Yonah Martin (Deputy Leader of the Government): I will simply say that the motion is fairly self-explanatory. Of course, I am asking all honourable senators to adopt the motion so that we can get to the vote, as we have explained and as I previously explained in your point of order, Honourable Senator Cowan.

Senator Cowan: Colleagues, I regret the decision the government has taken to challenge His Honour’s ruling. I thought the ruling was fair. It was, in my view, a correct interpretation of the rules of this place. It was consistent with the carefully thought out and carefully expressed view of His Honour’s predecessor, Senator Kinsella. I think our Speaker correctly interpreted the rules and correctly pointed out the dangers that the government’s course of action would present for the future of this institution.

As I explained in my remarks earlier, there is a very good reason why we differentiate between Government Business and Other Business. The rules recognize and respect that distinction, and they provide the government with all the resources and all the tools that they need to get their business done. But Other Business is the business of others. It is the business of the institution. It is the business of all senators.

It is not for the government leader or his deputy to decide, as Senator Carignan suggested, what is or is not Government Business. If they feel strongly that a particular piece of legislation requires the support of the various tools that are available for the management of Government Business, then they should have the courage of their convictions and they should bring those pieces forward as Government Business. They can then use the tools that are available to them under the rules.

I deeply regret what the government has done. I think it shows once again that this government is determined to get its way on everything, all of the time. As the Prime Minister famously said, “I make the rules.” Here, in this situation, we find that the government can’t get what it would like to have by following the rules, so they change the rules. They disregard the rules.

When our Speaker, a Speaker whom all of us support, comes forward with a ruling that is consistent with the rules and consistent with the precedent, and they don’t like it because they don’t like the rules, then they come forward with a motion that says, “We don’t care what the rules say. This is what we want done, and therefore we’re going to push the rules aside. We’re going to push precedent aside. We don’t care about the future of the institution and what it means for the structure of this place and the management of its business on a go-forward basis. We don’t care about that because we want this bill and we want it now. We’re being delayed. We want to go home for the summer, so let’s just disregard the rules and we’ll get our own way.”

Senator Carignan suggested in the course of his remarks that this was simply a stand-alone motion. He suggested that when he was making representations on the point of order. He said, “This is perfectly in order. This is a stand-alone motion.” With respect, that’s disingenuous. We all know what’s coming next. We all know that as soon as this debate on this motion is adjourned this afternoon, Senator Martin will stand in her place and give notice of time allocation, closure, the guillotine. That’s coming.

He suggested that this is a stand-alone motion and, don’t worry, everything is going to go on with this motion, just the same as with Senator Murray’s motion back in 2004. It’s not. Senator Murray’s motion was given under Other Business. It was not given with the intent and with the support of government tools behind it to force this through.

What we’re talking about now is step one of a two-step dance. For Senator Carignan to suggest that this is — and perhaps I misinterpreted, listening to the translation, but what came through my earpiece was this is a stand-alone motion. I think that we would be naive to think that this is a stand-alone motion. This is step one; step two is the hammer that is coming down. Notice of that is coming down this afternoon. That’s the whole point of the exercise. If that was not the point of the exercise, we wouldn’t be doing this, but we are.

Because the government refused to respect His Honour’s decision and forced them all, most of them, to stand on their feet in support of the government to overturn what I consider to be a correct decision, we’re saying that the government can disregard the rules when they want, when it doesn’t suit them. When they can’t win according to the rules, they change the rules and disregard them.

What we’re doing here is allowing the government to do indirectly what it cannot do directly, and that flies in the face of the advice that His Honour provided in his carefully reasoned judgment, and it was well supported by Senator Kinsella’s equally thoughtful judgment and order in 2013, which, as I noted this morning, was not appealed. The government could have appealed Speaker Kinsella’s decision at the time. They chose not to do so. We had a clear decision, which stood with the respect and support of the house. His Honour correctly followed that decision, and his friends over there turned on it.

That, in my view, is shameful behaviour. I think, as was pointed out in the ruling and as was pointed out by Speaker Kinsella previously, it poses grave risks to the future of this institution. This institution, as we all acknowledge, is under grave attack, and there are people who are suggesting that it should be abolished. Every time we do something like this, it provides ammunition to those who don’t believe, as we believe, in this institution. We give them ammunition every time we do this kind of thing and say, “I don’t care what the rules are; we’re just going to go ahead and make them up as we go along and we’re going to do exactly what the government says on everything — not just with Government Business but every other kind of business that the government decides they would like to have passed for some political advantage.”

We have rules. Our society operates on the basis of rules. If it didn’t, we would have anarchy. We would have chaos. We have rules about which side of the road you can drive on. If we didn’t have those rules, imagine what would happen. Every organization requires rules of some kind. If you don’t have rules and, more importantly, if you don’t respect those rules, then the institution itself is at risk.

Those rules have to be respected. They are there to balance interests. That is why there are rules there. It is not just the majority that has to be considered. It is the minority, others and independents. We have rules to balance the interest of government, opposition and independents. That is why we differentiate between Government Business and Other Business and why the government has extra tools, as it should have. They aren’t always used appropriately, but they are there for a purpose, and that is to enable the government to get its business done.

However, for Other Business, for the business of the rest of us, it’s not up to the government to say when and how those items should be dealt with. The rules are there, and rules are there to be respected all the time, not just when they suit the majority, not just when they suit the government.

We all know that the heavy hand of Mr. Harper is at work here. There is no mistake about this. This was not a decision made by people acting independently. The heavy hand of Mr. Harper is upon this. Mr. Harper has made it clear that he wants this bill.

Here we have a situation where the Prime Minister of this country has directed his senators in this place to break the Rules of the Senate, to overrule the Speaker’s ruling which respects those rules and is consistent with the precedent, to pass a bill which has been considered unconstitutional and an intrusion on the powers of the provinces by every single constitutional expert and lawyer, save one, who appeared before the Senate Banking Committee several years ago and our Legal and Constitutional Affairs Committee — every single legal and constitutional expert except one.

We have had the request of seven governments of all kinds of political persuasions, representing over 80 per cent of the population, and they have asked us not to pass this bill — not just to vote against it but not to pass it. Not one single province, not one single government, has asked us to pass this bill.

And we all know of the thousands of emails we’ve received. Sure, some have been generated by unions, but I’m sure other senators have received the same kinds of emails that I have received from individual Canadians and organizations that would be caught up by the intrusive nature of this bill.

As I say, Mr. Speaker, I regret the decision of the government today to appeal your decision. I think your decision was the correct one. It was consistent with our procedures, our Rules and our practices, but we are where we are.

Consequently, I wish to move an amendment.

Motion in Amendment

Hon. James S. Cowan (Leader of the Opposition): Therefore, honourable senators, I move:

That this motion be not now adopted but that it be amended by replacing the words “immediately following the adoption of this motion” with the words “following the adoption of this motion, but no earlier than October 20, 2015”.

The Hon. the Speaker: On debate, the Honourable Senator Mitchell.

Hon. Grant Mitchell:

Thank you, Mr. Speaker. I want to make a few comments.

I was struck by Senator Cowan’s comments about the Prime Minister’s statement some time ago when he said, “I make the rules,” yet today we find quite the opposite; he could be said to be saying, “I break the rules,” because this is exactly what’s happened. This is a breaking of the rules and I wanted to make that point.

The second point I wanted to make is just a debating point but worth getting on the record. It has been said that we on our side have taken the position we are taking on this bill because of a letter from a leader on the other side, which is very difficult to square with the fact that we took a very different position on Bill C-51 from the leader on the other side. The fact of the matter is that it is impugning our motives.

My motive for voting against this bill is that this is a very bad bill. It is fundamentally unfair. It will be challenged and defeated in the courts on the basis of its intrusion into Charter rights. It is focused specifically against unions when unions are simply another form of corporation. No government in its right mind, even this one, would think about passing legislation to give BlackBerry an advantage over Apple, for example. The fact is that unions have a right to compete in this marketplace, and they shouldn’t be thwarted by arbitrary government-directed, unfair, biased legislation, period.

It is to a large extent yet another step in what I’m terming “repression creep.” We’ve seen the government bring in untold numbers of omnibus bills which are an intrusion into democratic rights. We’ve seen a record number of times that closure has been used. Most recently, we’ve seen Bill C-51 infringe upon Charter rights, upon due process and upon privacy rights. This is yet another step in this government’s repression of rights, in this case parliamentary rights and parliamentary due process.

It is interesting also that the argument being made by the other side is that there is this fundamental necessity to have a vote on Bill C-377 because it was passed by elected representatives. However, there have been nothing but delays on that side. In fact, we’ve had over two years to get a final vote on Bill C-279, which likewise was passed by a majority of members on that side in the other place. Therefore we have a very interesting juxtaposition of intrusion and diminishing of rights. On the one hand they want to pass Bill C-377 that takes away the rights of unions, and on the other hand they don’t even want to have a vote on Bill C-279 that would extend rights to transgender people.

It is, Mr. Speaker, a moment in the history of this Senate and of this parliamentary democracy that fundamentally underlines a profound hypocrisy. If you’re going to vote on Bill C-377, then at least give us a vote on Bill C-279. It’s the only fair thing to do, but then you’ve lost any sense of fairness.


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