Canada's Original Think Tank

Second reading of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate)

Second reading of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate)

Second reading of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate)

Second reading of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate)


Published on 4 February 2016
Hansard and Statements by Senator Terry Mercer

Hon. Terry M. Mercer:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness.” Those immortal words by Charles Dickens could be used to describe the Senate, and indeed the Government of Canada, over these past years.

We have seen a new government elected and an old one replaced. Certainly the best of times — for me, anyway.

But here in this place we find ourselves in a precarious situation. We recently had some senators leave their political party and become independent; we have had other senators become independent not of their own volition; we also have some senators who are enduring ongoing legal battles — certainly not the best of times.

What remains clear is that the Senate needs to change. I believe we all know that, and I believe we all want that to happen.

So we must ask ourselves how we accomplish that without changing the constitutional role we play in governing the country. For too long Senate reform has languished on the sidelines as a political tool for an old government.

Honourable senators, while the Liberal leader removed senators from the national caucus of the Liberal Party, we still share Liberal values, and we have enjoyed quite a lot of independence since then.

During the recent election campaign, the Liberal Party, and now Prime Minister Justin Trudeau, promised Senate reform. To quote from the platform of the party, the plan:

. . . eliminates partisanship and political patronage, without bogging down the country in years of divisive constitutional negotiations with the provinces . . .

— which of course said the status quo is not an option.

The platform went on to say:

. . . we will also create a new, non-partisan, merit-based, broad, and diverse process to advise the Prime Minister on Senate appointments.

We have seen those moves made already. I applaud the government for moving quickly on these promises, yet I urge caution to the new advisory committee currently looking at the recommendations for Senate appointments. I am ever hopeful that they will take into consideration the history of this place, what it stands for, how it participates in the function of government, and the regional balance it supports.

One could also make the case that this is the opportunity to address gender equity, or should I say inequity, in Parliament.

I have said many times before that we should be looking at mechanisms to ensure an equal number of women and men in this chamber. Quite frankly, it is easier to accomplish gender equity here rather than in the other place — one of the virtues of our chamber being appointed rather than elected. As the Prime Minister said more recently: “After all, it is 2015.”

Indeed, this past December, over 80 prominent Canadian women, including former Prime Minister Kim Campbell and former Deputy Prime Minister Sheila Copps, sent a letter to the Prime Minister calling on him to fill all the current vacancies with women.

So I do hope that the new advisory committee takes these ideas to heart as they deliberate the nominees for senators to the Prime Minister.

So, honourable senators, what other ways should we explore to reform this place without opening up the Constitution? What initiatives can we implement to make the chamber more democratic?

We saw one yesterday. We decided, as senators, to invite ministers of the Crown to attend our Question Period. The appearance of Minister Tootoo, Minister of Fisheries, Oceans and the Canadian Coast Guard, was not the first time a minister has appeared in this place, but it was the first time we invited a minister here to answer questions during our Question Period.

This experiment was not only bold and innovative, but informative. I hope we continue this practice. I also hope we continue to think about new ways to show Canadians that this hallowed chamber has a purpose and that its purpose is indeed to represent them and their interests.

That brings me to the bill before us today, Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act.

The speakership of the Senate act seeks to change the way our presiding officer is chosen. Forgive me, honourable senators, if some of this sounds repetitive, because these proposals are not new. This is the fifth incarnation of this bill since 2003. Our former colleague Senator Oliver introduced a similar bill three times, and this is my second go at it. Only once was it ever referred to committee, but it has never been studied. I hope we can change that now.

Let’s briefly review what the bill accomplishes.

The legislation amends the Constitution Act, 1867 to provide for the election of a Speaker and a Deputy Speaker of the Senate. It further amends the Constitution Act, 1867 to provide for a voting procedure similar to that of the House of Commons and provides that the elected Speaker, Deputy Speaker or whoever is presiding cannot vote except in the event of a tie. It also makes consequential amendments to the Parliament of Canada Act to allow for the absence of the Speaker and the Deputy Speaker of the Senate.

One thing you probably noticed is that big, bad phrase “amending the Constitution.” We are not talking about opening up the Constitution to negotiations with the provinces on this issue. We’re not talking about using the 7-50 rule. What we are talking about are amendments that I and many others believe fall within the scope of our powers as senators to change how we govern ourselves.

Honourable senators, as I also mentioned the last time I introduced this bill, the act would also amend the Parliament of Canada Act to ensure the chair is never empty. The Speaker must choose the Deputy Speaker to replace him or her. In the event the Deputy Speaker is unavailable, the Speaker may choose another senator to act as a temporary Deputy Speaker, and if the Deputy Speaker is in the chair and must leave, the Deputy Speaker may choose a senator to replace him or her as a temporary Deputy Speaker.

When both the Speaker and Deputy Speaker are absent, all senators in the chamber would decide on who will be the temporary Deputy Speaker on that day. This does seem like a rather natural process that emanates from the selection of both the Speaker and the Deputy Speaker.

What does not seem natural is that our presiding officer, our Senate Speaker, is not chosen by us. He or she is chosen by the Governor General on the advice of the Prime Minister.

I should take a moment, honourable senators, to tell you that if a selection process were to happen at this time, I would be among the first to vote for the current incumbent in the chair. So this is not about the incumbent we have today but about the process itself.

What does seem unnatural is that the presiding officer, the Senate Speaker, is being chosen by the Prime Minister. The question we ask ourselves again is whether the Speaker should be independent of a government appointment. So if you believe that they should be chosen independently of the Prime Minister of the day and should be chosen by the very people they will be serving, you should be supportive of this bill.

In all the provinces and territories in Canada, the Speakers are elected by the members of those legislatures. Of course, the House of Commons elects its Speaker. According to the research I had completed, the data contained information on the structure of 267 parliamentary chambers in all 191 countries where a national legislature exists. Of those, only the bicameral legislatures in Canada, Antigua and Barbuda, and Bahrain appoint their presiding officers. That’s it.

Here are some of the countries that elect their presiding officers for their upper chambers: Argentina, Australia, Bahamas, Barbados, Belgium, Belize, Bolivia, Brazil, Chile, Colombia, Dominican Republic, France, Gabon, Germany, Grenada, Ireland, Italy, Jamaica, Japan, Kenya, Malaysia, Mexico, Netherlands, Nigeria, Paraguay, Philippines, Poland, Romania, Russian Federation, St. Lucia, Spain, Switzerland and the mother of all parliaments, the United Kingdom.

So I ask you: What’s our problem?

The last time I introduced this bill, Senator Greene spoke to the bill. I was very happy to hear that he was supportive of senators choosing our own Speaker. While he was not supportive at that time of the way it could be done — that is, this bill — I wonder how he feels now. Hopefully we’ll hear soon. Indeed, I wonder how we’ll all feel about it now.

Honourable senators, are we now ready to consider this bill seriously? Are we now ready to change an old parliamentary tradition that simply stays the course and keeps the selection of our Speaker out of our control?

Some Hon. Senators: Hear, hear.

Senator Mercer: What I did notice from Senator Greene’s speech was that he mentioned a previous version of the bill that was introduced by a fellow Bluenoser, Senator Oliver. One of his ideas provided for a non-renewable term for the Speaker. Senator Greene pointed out that that may have the advantage of enabling more senators to bring their experience and talents to this important position. This is something we could explore as we move forward with examining this bill. Or perhaps down the road after we witness how the election of the Speaker, as changed by this bill, works. It might be time to look at it then.

Senator Greene also mentioned that another method could be used: changing the Rules of the Senate and hoping that the Governor General would listen to our advice instead of the Prime Minister’s over time. The question I asked myself was, why would we do that? Why would we not exercise our powers to enshrine such a process in the highest rule books of the land, the Constitution and the Parliament of Canada Act?

The House of Commons elects its Speaker, so why shouldn’t we? While we are, in many ways, different from the House of Commons, the choice of our presiding officer should not be at the whim of the Prime Minister of the day. It should be ours.

Honourable senators, you will recall that back in October, after the federal election, senators from all sides of this chamber met as a group to discuss possible reforms to the way we govern ourselves. One of the ideas that was quite popular included electing the Speaker.

The appetite is here for this change from all sides, so let’s not let partisanship stand in the way once more. Let us get this bill to committee where it can be studied further. Let us do what we were sent here to do: use our experience to guide our deliberations, seek out further advice when we need it, listen and decide for ourselves independently of the government of the day how we want to govern ourselves. Let us have this debate.

Honourable senators, I ask you for your support in this endeavour and your support for this bill.

Hon. Stephen Greene: Your Honour, I’d like to take the adjournment of this wonderful debate in my name.

The Hon. the Speaker: Would you mind holding on to the adjournment for a question from Senator Joyal? Senator Mercer, are you ready for a question?

Senator Mercer: Yes.

Hon. Serge Joyal: Senator Mercer, you alluded in your speech to a previous incarnation of this bill. You mentioned it was in its fifth rebirth, I should say. You referred to the bill introduced by our former esteemed colleague Senator Oliver. You have certainly read the Journals of the Senate in relation to the debate that took place on those various occasions, and you will certainly have noticed the issue of the constitutionality, that is, the capacity of Parliament to amend that section of the Constitution, which is, as you know, section 34. I will read it to you:

The Governor General may from Time to Time, by Instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his Stead.

There were debates on those occasions where previous bills to that effect were introduced. Did you pay attention, or did you have time to review the constitutionality of removing this provision from the Constitution? Does the Parliament of Canada alone have the capacity to remove that section, that is, to amend the power of the Governor General?

Senator Mercer: Thank you very much, Senator Joyal, for your question.

In my research and in the background that I’ve been able to find, almost everyone that I’ve listened to on the subject has said that we have the power to pass this bill that will make this amendment, and obviously it would need the concurrence of the other place because it is a bill. That was entirely within our jurisdiction. It will not require any consultation with the provinces because it deals with how this place is run, as opposed to the representation of the provinces or anything outside of this. It is the old term, a sort of an inside baseball thing. It is our fixing a rule that, in some of our minds, has hindered our ability to move forward.

All of the people and opinions that I have seen have been very supportive of the fact that this is a legitimate amendment of the Constitution.

Senator Joyal: In that context, did you get a written opinion, for instance, from the legislative adviser of the Senate or legal counsel, a constitutional lawyer or somebody with a background in studying the Constitution, an opinion that we could take notice of, read, reflect upon, so that we could help you move the bill forward?

Senator Mercer: When I decided to proceed with this bill, one of the first things I did was consult with the law office of the Senate of Canada. I was told that this would require an amendment to the Constitution, and that an amendment to the Constitution of the country was legitimate within the context in which I have put the argument and in which the bill has been framed.

I think your point is a very good one, and once we move from here to the committee, of which I know you are a member, that would be a good place. I hope that the committee will call those experts and have them testify before the committee so that we have it on record and in the records to support the fact that that is exactly what we want to do.