Senate ModernizationPublished on 15 November 2016 Hansard and Statements by Senator James Cowan (retired)
Hon. James S. Cowan:
Colleagues, as I do not intend to speak on the other reports arising out of the Modernization Committee and have a lot of ground to cover today, I wonder whether I might seek the indulgence of my colleagues and have an additional 10 minutes so that I would complete my remarks in 25 minutes.
The Hon. the Speaker: Honourable senators, as you know, Senator Cowan is entitled to 15 minutes. He’s asking for 25. Is it agreed?
Some Hon. Senators: Agreed.
An Hon. Senator: No.
The Hon. the Speaker: I hear a “no.” We need consensus.
Fifteen minutes, Senator Cowan.
Senator Cowan: Thank you, colleagues. As many of you know, although I moved the motion that established this committee, its true origin lies with our late colleague and highly respected Speaker, Senator Pierre Claude Nolin. On May 8, 2014, Senator Nolin proposed the establishment of what is now our Special Committee on Senate Modernization, in his words:
. . . to consider methods to make the Senate more effective, more transparent and more responsible, within the current constitutional framework. . . .
Sometimes it takes time for an idea to gain consensus. So it was not until last December, when I introduced my motion, that the chamber decided the time was right to establish the committee.
I want to thank Senator McInnis and Senator Joyal and all other committee members for the time and effort they’ve devoted to the work of the committee over the past several months. Of course, they were not alone. Many other colleagues also participated in the work of the committee, feeding their own ideas and suggestions into the process. The report, our own debates here in the chamber and especially the changes that result unquestionably will be the better for that engagement.
I also want to thank the witnesses who took the time to testify or to send in submissions and, of course, our very capable researchers and table officers who contributed their expertise to inform the committee’s work.
Colleagues, the committee has produced an excellent and thought-provoking interim report for our consideration — proposals designed to make the Senate a more effective legislative chamber within the current constitutional framework. That has to be our overriding and overarching objective.
As I have said on several occasions, including when I spoke in support of my motion to establish this special committee:
. . . simply tinkering with our rules is not enough. We have to improve the way we do our job. At the end of the day, we will not be judged on how effectively we manage our budget but rather on how effectively we operate as a legislative body.
I have read the presentations made to our Senate Modernization Committee, and it is becoming clear that there are several very different paths being presented as the way forward for this chamber. The Government Representative in the Senate, Senator Harder, is the most radical and, one might even say, slyly subversive. Indeed, looking closely at his proposal, he would redefine the Senate’s role within our parliamentary democracy as he reshapes how senators operate.
Let me hasten to say that my issue is not with the role, participation or resources to be afforded to senators who choose to sit as independents in this chamber or who wish to align with groups other than the traditional caucuses in the Senate. I believe strongly that all senators must be enabled and encouraged to participate fully in the important work that Canadians expect us to do on their behalf. We clearly will need to change some of the rules to accommodate the new reality in the Senate, and that, of course, needs to be done thoughtfully and with care.
It would be passing strange for the chamber of “sober second thought” to abandon that principle when it comes to rewriting its own rules and procedures. But giving it the care it deserves does not mean that there aren’t steps we can take now. I don’t believe we need to always wait for the lengthy and complex drafting of rules to be completed before we try an idea.
We should not be reluctant to experiment or test drive a proposal for a time. If it works, then we can change the rules. If not, we can drop it. If adjustments are needed, we can make those adjustments. Nothing ventured, nothing gained.
This, of course, would not be the first time we proceeded in this way. An example is one we saw earlier this afternoon. Last fall, we adopted the practice of inviting ministers to answer questions in the Senate. I believe that all senators — as well as the ministers who have appeared — have found this to be an outstanding success. Both the questions and answers, in fact, have often proven to be more thoughtful, more respectful and even more informative than what has been the experience in the other place.
So my differences with the Government Representative in the Senate are not related to the issue of accommodating or providing resources to the independent senators. My issue is that his vision of the Senate could actually make it a less effective institution in our parliamentary democracy — that he is quietly engaging in rewriting both the history and purpose of the Senate and, in so doing, is effectively expanding the control by the government over the operations of this chamber, even as he innocently protests that his government is doing the opposite. Let me explain.
A starting point is the hot-button issue of partisanship, and politics in the Senate. All of us agree, I’m sure, that independence is one of the critical and essential features of the Senate and of individual senators themselves. In a speech here on April 20, 2016, I spoke at length about the meaning of this critical independence. At that time, I spoke of the critical need for the Senate, as an institution, to be independent both of the House of Commons and of the government and what that entails. I spoke of the equally critical responsibility for each senator to be independent — to exercise independent judgment and, in the words of George Brown:
. . . to stand up for the public interests in opposition to hasty and partisan legislation.
Where I part company with Senator Harder is that he jumped from the agreed need for the Senate to be independent to saying that it needs to be completely non-partisan. Indeed, to my surprise, he actually tried to rewrite history as he described bringing the Senate, in his words:
. . . closer to the non-partisan and complementary body that the framers had envisaged and the Supreme Court endorsed. Quite simply, that’s not true. We can certainly have a debate about what this chamber should be in the future, but let’s have that debate without misrepresenting the Senate’s origins or what the Supreme Court of Canada said.
The Leader of the Opposition, my friend Senator Carignan, pointed out in his testimony to the Senate Modernization Committee that in fact the Senate never was a non-partisan body. The very first Senate established by Royal Proclamation under the government of Sir John A. Macdonald was structured with a government and an opposition side, the latter consisting of 25 Liberal senators appointed by the Conservative Sir John A. Macdonald. Those original Liberal senators formed a caucus with a Leader of the Opposition who was known to be, in the words of Senator Carignan, “a ferociously partisan Liberal.”
Politics was always present in the Senate from its inception. This was not at all denied or rejected by the Supreme Court of Canada. Indeed, the very opening words of the Supreme Court’s judgment in the 2014 Senate Reference were the following: “The Senate is one of Canada’s foundational political institutions.”
I believe that is right. We are not a new layer of the civil service with Senator Harder at our head. We are not a $90 million debating club. We are not a council of elders. We are not some sort of advisory panel. We are one of the two chambers of Canada’s Parliament, a foundational political institution that is independent of the elected House of Commons and independent of the government.
Our challenge, colleagues, and it is ours as individual senators, is to ensure that politics does not undermine our independence. I believe that has been the real problem.
We heard this just recently from Senator Bellemare, now the Deputy Government Representative. Right before the break week she told this chamber that under the previous government she gave in to political pressure from her colleagues in the other place, and changed her vote to abstain on a bill rather than vote against it, as her convictions would have dictated. That is an example of partisan politics being allowed to undermine a senator’s independence. But as I said to Senator Bellemare at the time, that was her choice. Because, colleagues, this institution was carefully designed to shield each of us from the need to give in to such pressures — to protect our independence. That is why we’re appointed and then hold our positions until the age of 75. We are not dependent on someone deciding whether or not to sign our nomination papers every four years, as are members of the other place.
Excess partisanship in the Senate is not an institutional failing. When it happens, it’s a personal choice and therefore a personal failure. I understand that it isn’t easy to stand up to friends and colleagues. I get that. I have lived that. But we need to take responsibility for our decisions and not try to pretend that they are institutional failings. It would be wrong to rewrite our Rules or reinvent how we do our work in order to avoid responsibility for our past actions, to try somehow to blame the rules or our caucus for our own personal failings.
I must correct something else that Senator Harder has said on several occasions. I have been surprised and disappointed to hear him refer on more than one occasion to the traditional caucuses in this chamber as “party-controlled caucuses.” He knows that our caucus has no affiliation with the Liberal Party of Canada or with the Liberal caucus in the House of Commons. We take no direction from and are certainly not controlled by any member of the Liberal Party or the Liberal government. We do share traditional Liberal values and call ourselves the Senate Liberal caucus, but no one controls us or how we act, speak or vote, including, most definitely, the Liberal government.
In fact, and this is an irony, the only senators here to take direction from the Liberal government are the members of the Government Representative team led by Senator Harder himself. I find it the greatest of ironies that these three senators, who are the only ones in this chamber to state openly and proudly that they are here to represent and defend the Liberal government of Prime Minister Justin Trudeau, demand that they be identified as “independent” and then go on to publicly question the independence of the majority of their colleagues in this chamber.
Colleagues will recall how I would characterize some of the pronouncements of the former government of Prime Minister Harper as Orwellian doublespeak. Unfortunately I can think of no better term to describe this.
I began by saying that my concern with Senator Harder’s vision is my suspicion that it lays the groundwork for greater, not less, control by the government over our work. Let me elaborate.
Senator Harder said that he would like to do away with the Westminster system in the Senate. In his words,
In my view, in a more independent, complementary and less partisan Senate, there will no longer be an organized and disciplined government caucus, and, correspondingly, there should no longer be an organized official opposition caucus. One of the most fundamental of the changes that are currently taking place in the Senate is that the traditional Westminster model of an organized and disciplined government caucus versus an organized and disciplined opposition caucus, a dynamic that is largely predicated on partisanship, will disappear.
Colleagues that is a radically different vision than the one I understood Prime Minister Trudeau to put forward. I understood Prime Minister Trudeau as actively encouraging a profoundly skeptical approach by all senators when dealing with a government, whatever its political stripe. He was clear what he wanted from the Senate when he spoke on the day he first announced his approach to Senate reform, January 29, 2014 — as we refer to it, our “Independence Day.” On that day Justin Trudeau, then Leader of the Liberal Party of Canada, said this:
If the Senate serves a purpose at all, it is to act as a check on the extraordinary power of the prime minister and his office, especially in a majority government.
Colleagues, we cannot fulfill this role as a disorganized, divided group of 105 individuals. That, in my view, is simply not possible.
You begin to understand the reasons for my suspicions as Senator Harder, the Government Representative in the Senate, seeks to do away with the opposition leadership structures and leave his office as the only organized structure in this chamber. By the way, I do note he has repeatedly said his office needs $850,000 to do that job. Many of us found that a surprisingly high number given that there is no government caucus that he serves.
But the request becomes more understandable if Senator Harder envisages his office as becoming the de facto leader of the entire Senate. These suspicions were reinforced by the invitations sent to all of us by his office offering to organize meetings with the governments, including the premiers of the provinces we each represent.
Colleagues, it’s surely not for the Government Representative in the Senate to serve as an intermediary between any of us and the region we represent. Prime Minister Trudeau was very clear that the traditional role —
The Hon. the Speaker pro tempore: Senator Cowan, before you proceed with that sentence, your time is up. This matter will remain adjourned in the name of Senator McInnis.
Some Hon. Senators: Five more minutes.
The Hon. the Speaker pro tempore: He will continue further on in the Order Paper, and then we can ask questions.
Hon. James S. Cowan: Colleagues, before the break, I was referring to the invitation that Senator Harder had sent out to all of us, offering to organize meetings with the governments, including the premiers of the provinces we represent. I was suggesting that, in my view, it’s not for the Government Leader in the Senate to seek to serve as an intermediary between any of us and the region we represent.
Prime Minister Trudeau was very clear that the critical role of the Senate is to act as a check on the extraordinary power of the Prime Minister and his office. What credibility can we have in seeking to speak for our region in response to government proposals, when our access to our province’s views is being overseen, or even orchestrated, by the government’s leader in the Senate?
Such an action undermines our own position as senators representing our region. It undermines our independence, and it undermines our role as a check on the government.
Colleagues, I have served in this house for over 10 years. I have met with all of the premiers who have led my province of Nova Scotia during that time, whether they be Conservative, NDP or Liberal. I have had ready access to them and to the members of their government. That is part of my job.
It would never have occurred to me to ask an official representative of the federal government to help me gain that access or, heaven forbid, to join me in such a meeting, as I believe has actually happened in recent months. If that is Senator Harder’s idea of our role representing our regions, then he should be open and transparent about it so that his idea can be openly considered and debated. He should not, in my respectful submission, be quietly sending out invitations to individual senators to join him in meetings with our respective premiers.
Then, last week, we received the invitation from Senator Harder for all of us to meet behind closed doors “to discuss short-term and long-term government business.” What does he want to discuss with all of us privately, in a closed committee room, that he is unwilling to discuss in the open chamber? Is he trying to transform the whole of the Senate into a government caucus by another name, that he’s calling us to a secret, caucus-like meeting to discuss upcoming government business?
So you will understand, colleagues, why I am suspicious that the government is trying through its representative in the Senate to exert more control over this chamber and its members, and not less, as is claimed.
I have also been troubled to hear caucuses spoken about in dismissive terms, as though they were nasty relics of an unenlightened age that will be abandoned in a post-political, utopian age. I believe that caucuses can improve the effectiveness of the Senate in fulfilling its roles within our parliamentary democracy, and I worry that attempts to demean caucuses will result in senators being less effective in considering government legislation.
Given so much disinformation being disseminated, let me set out the facts about the Senate Liberal caucus. We are a group of individuals from a wide variety of backgrounds and experience who share a common basic set of values and principles that can be described as traditional liberal values and principles. It’s because of these personal values and convictions that I’ve spent many years working on behalf of the Liberal Party, both in Nova Scotia and across the country. But it is insulting to me, and demeaning to my caucus colleagues as a group, to suggest that because we share these values we are somehow “controlled” by the Liberal Party. Frankly, that is the kind of language that has no basis in reality and only undermines politics in the eyes of the public.
My experience — and I suggest that most of us would find the same thing — is that I can be more effective working with others from across the country who share my values but have their own wealth of knowledge and experience to bring to bear upon a matter before the Senate. We cannot all of us be experts in all of the issues that come before this chamber. I benefit immensely from my caucus colleagues sharing their expertise and informed perspectives. There is no question that my own views and contributions to the work of the Senate have been improved as a result of discussions in caucus — discussions with Senator Joyal from Quebec, a recognized constitutional expert who has appeared before the Supreme Court of Canada many times; with Senator Dyck from Saskatchewan, whose commitment to First Nations and First Nations women is second to none; with Senator Eggleton from Ontario, a lifelong promoter of social justice and an anti-poverty advocate; and with Senator Jaffer from British Columbia, who travels across Canada and around the world working for minority rights.
I could go on and on, naming every member of our caucus. I’m proud to sit in a caucus with each of them and to continue to gain immeasurably from their insights. Each member brings unique knowledge and perspectives from their part of the country that enrich our caucus discussions, which in turn inform our individual contributions to the work of the Senate.
This experience is certainly not unique to our caucus, as much as we sometimes might like to pretend it to be. I’m sure that others who sit in an organized caucus feel exactly the same way and benefit from the insights and contributions of their caucus colleagues.
That’s why the overwhelming majority of senators since Confederation have chosen to align themselves with a caucus, and that’s why legislators align themselves into groups, into caucuses, in every modern democratic assembly throughout the world.
But let me be clear, because this seems to be overlooked, whether deliberately or not, in many discussions on this issue: We do not whip votes in our caucus. Every vote is a free vote; no one controls how any of us vote on any issue. We make independent decisions, and we’re proud of that. But we choose our vote informed by serious discussion and deepened by the rich knowledge and experience of our caucus colleagues.
Whether called groups or caucuses, I believe this organizational form benefits the institution as a whole.
I want to say a few words about the proposal to organize senators into regional caucuses. I don’t support that proposal. Frankly, it makes no sense to me.
I am a member of a national parliament. My role representing my region in this national Parliament is enhanced, not undermined, by sitting in a caucus with like-minded colleagues from other regions of the country as we all work together to legislate on behalf of all Canadians.
Senator Harder would prefer that I officially or formally caucus only with those who come from my region of the country, even if they have a diametrically opposed view of the world. Apart from some kind of administrative efficiency, how would that improve my work?
And why focus on the regional role when realigning caucuses? As Senator Carignan pointed out in his presentation to the Modernization Committee, the Senate is also intended to uphold the rights of minorities, a responsibility that I know is taken very seriously in this chamber. But are we to be segregated into caucuses based on our religion, ethnic identity, sex, language or skin colour? Certainly not.
To repeat, colleagues, we are members of a national federal parliament. A federal parliament would have no public legitimacy if it did not have representation in cabinet from all regions of the country. But Senator Harder is suggesting the very opposite for all of us — that our official caucuses, recognized and given status under our Rules, would not be allowed to have representation from outside one specific region.
I ask Senator Harder: Is this the way he proposes to strengthen national unity, which has been, as we are all well aware, a serious point of stress and concern throughout our history? Frankly, a serious argument can be made that any group of senators that cannot obtain members from at least two or three regions in the country should not be given special recognition under our Rules. Again, we are a national chamber.
Colleagues, I want to conclude with a brief comment about politics. Politics has become in the eyes of many a dirty word; hence, so much of our discussion is focused on ridding this chamber of any taint of partisan politics. I have lived my life believing that politics is the highest calling for a citizen in a democracy: an opportunity to contribute to the greatest cause possible, namely, building our country and making it a good place to live and work, for ourselves, our children and generations to come. I have had the highest regard for people who have engaged on all sides in the political life of our community, whether by volunteering to do so in many of the tasks involved in supporting a candidate, running for election to office or serving, as we do here in an appointed position, the Canadian people.
And I believe that we get the best people serving in government — and get the best government — when that service is respected.
But, of course, as I have said, this view is no longer widely held. We are seeing the impact around the world, as individuals who have devoted their lives to public service are rejected for being politicians, and are replaced by populists claiming the mantle of being anti-politicians as they run for, and are elected to, political office. Some of the consequences are very unsettling, as we are witnessing.
I believe it is urgent that we reclaim the honour of politics, and the work that we do in the Senate to modernize this institution, and the way we do our work, will have important consequences in that quest.
Colleagues, it’s an honour to be called to serve in this place, in the Senate of Canada. It’s an opportunity that truly is unparalleled to contribute to the lives of our fellow citizens, and the future of the country we love. All of us want the Senate to be the best it can be for Canadians, and for each of us to do the best we can, as proud members of the Senate of Canada.
Some Hon. Senators: Hear, hear!