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Speech in Senate Chamber: Senator Cools speaks to Bill S-8, An Act to maintain the principles relating to the role of the Senate as established by the Constitution of Canada.

On the Order:

Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Corbin, for the second reading of Bill S-8, to maintain the principles relating to the role of the Senate as established by the Constitution of Canada.

Hon. Anne C. Cools: Honourable senators, I rise today to speak to second reading of Bill S-8, to maintain the principles relating to the role of the Senate as established by the Constitution of Canada. I support this bill and I support the intention of this bill. I support Bill S-8's proposals to amend several statutes so that the Senate's proper role in Parliament and the Senate's constitutional role are recognized and upheld.

Honourable senators, during debate on Bill S-8 on February 6, 2001, Senator Joyal said, at page 60 of the Debates of the Senate:

A review of the statutes has identified 47 acts passed since 1920 that fail to give the Senate a role and status equal to the one of the House of Commons. Of these 47 acts, 20 of them have been inoperative with respect to the provisions of interest to us as senators. This leaves 27 acts that exclude the Senate and prevent it from carrying out its legitimate responsibilities. More important, since the 35th Parliament — that is, in the last seven years, since 1994 — eight bills have been introduced with that kind of clause excluding the Senate. Five were amended in the Senate and the House of Commons, and one was the object of a commitment by the government that the corrective amendment would occur in due course. The proposed bank act died with the end of 36th Parliament and Bill C-20 was adopted without amendment. Bill S-8 aims to amend the 27 acts still in effect that suggest a difference in status between the two Houses of Parliament..

Honourable senators, I should like to take this opportunity to thank Senator Joyal for bringing this bill before us. I thank him for his work and for his initiative. For too long, too many bills have come before the Senate that simply seek to diminish the Senate.

We have seen some of those bills passed here in the Senate. I am disappointed that Bill S-8 does not include an amendment to last year's Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, known to us as the Clarity Bill. All senators here will no doubt recall the debates on the role of the Senate in determining the clarity of a question regarding the secession of a province. As senators know, I voiced strong opposition to Bill C- 20. I also voted against the Clarity Bill because it diminished the role of the Senate, and for a few other reasons, although the fact that it diminished the role of the Senate was strong in the minds of many of us. I am hopeful that a future bill will amend C-20. I encourage Senator Joyal to bring such a bill forward.

Honourable senators, the Senate's constitutional role in legislation is clearly defined in Canada's Constitution, and it is a role equal to that of the House of Commons. Every act of Parliament passed here should recognize and reflect the Senate as an integral and equal part of the Parliament of Canada. The Constitution tells us this. Section 17 of the Constitution Act, 1867, formerly known as the British North America Act, 1867, states:

There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

Honourable senators, the one Parliament of Canada is indivisible. It includes the upper house, the Senate of Canada.

In addition, the Constitution Act, section 91 states:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and good Government of Canada...

The Constitution Act, the former BNA Act, states, clearly and unequivocally, that laws for the peace, order and good government of Canada should be enacted with the consent of the House of Commons and the Senate.

Clearly, the Constitution Act and the Fathers of Confederation viewed the agreement and consent of both Houses as being equally necessary and equally important. Since 1994, under this Liberal government, there have been several bills introduced in Parliament that have excluded the Senate. One wonders why there have been so many bills that diminish the Senate and how these bills were able to pass the Senate.

Honourable senators, Bill S-8 is timely. It comes to us at a time in the history of our nation when certain ministers of the Crown are known to be proponents of the abolition of the Senate. The May 31, 1999 National Post article entitled "The quiet Senate abolitionists of the federal cabinet'' identified Minister of Foreign Affairs John Manley, his predecessor, Lloyd Axworthy, as well as Stéphane Dion, the Minister of Intergovernmental Affairs, as being proponents of Senate abolition. As early as February 28, 1997, The Vancouver Sun noted this phenomenon. In an article headlined "Intergovernmental Affairs Minister wants Senate gone,'' the newspaper reported:

The Senate should be abolished, Federal Intergovernmental Affairs Minister Stéphane Dion said Thursday.

Minister Dion's very public disaffection and disdain for the Senate is especially bewildering in light of the events leading up to his appointment to cabinet followed by his subsequent election to the House of Commons.

Honourable senators, the exclusion of the Senate from various bills can be no oversight or accident. The exclusion of the Senate from so many acts of Parliament must be part of a systematic attempt to inhibit the Senate's role in the governance of Canada. The Senate must take action against these slights. Bill S-8, in my view, is a necessary correction to these slights and a vital correction to the laws of Canada.

Honourable senators, certain ministers have attacked the Senate by asserting that the Senate can be ignored. They simply state that believing that if they repeat it often enough people will believe that it is right. They assert that they can ignore the Senate because the Senate is incapable of confidence votes, that is, votes on confidence questions. This is clearly not true. They are blatantly wrong. The constitutional authorities tell us this in uncontroverted language. Canada's highest constitutional authority, Alpheus Todd, in his book entitled Parliamentary Government in the British Colonies told us so, saying:

It is true that a vote of want of confidence in an existing administration may properly be passed in either house of parliament, without it being necessary to assign any reasons for the same.

Todd was writing about Canada's Senate — not a foreign or alien Senate, but the Senate of Canada. I repeat: Todd stated in incontrovertible, easily understood language that want of confidence votes could be passed in this Senate Chamber.

An example of the Senate's capacity on a confidence question can be found in the vote on the motion for the Address in Reply to the Speech from the Throne. There is presently such a motion before us on the Order Paper and senators have been speaking to it today. An adverse amendment or a negative vote on the Address in Reply to the Throne Speech would be a confidence question and could cause the defeat of a government.

Honourable senators, if such an address were carried in the Commons and defeated in the Senate, the result would still be a defeated government. I do not understand how these ministers can take these erroneous positions, and I do not understand why so many of them are allowed to continue to hold their erroneous positions without constant correction and debate from some of us.

Honourable senators, I should also like to point out that the Senate has used its power of confidence in the past to impact the politics of the nation. I wish to share a particular example of the Senate's role in such a censure function, that being the Senate's role in the 1879 dismissal of then Quebec Lieutenant-Governor Luc Letellier. The Governor General, the Marquess of Lorne, removed Mr. Letellier as a result of the adoption of resolutions in both the Senate and the House of Commons. Luc Letellier had been a Government Leader in the Senate under Liberal Prime Minister Alexander Mackenzie who subsequently appointed him Lieutenant-Governor of Quebec in December 1876.

Lieutenant-Governor Letellier, in March 1878, had dismissed the Quebec Conservative de Boucherville government and had asked Liberal Leader Henri-Gustave Joly to form a government. Much controversy ensued, including the adoption of that motion of censure against Letellier here in the Senate. This motion eventually and ultimately led to his removal.

Honourable senators, the Letellier affair was a matter of high constitutional crisis and a lengthy and complex one that is recorded in the proceedings of both our Houses. It is of importance that the Senate carried the lead in Letellier's removal. In this Senate, on April 12, 1878, Conservative Opposition Leader Senator Alexander Campbell moved a motion of censure against Lieutenant-Governor Letellier. That motion carried on April 16, 1878. It is interesting to note that a similar motion of censure against Letellier had failed in the other place the day earlier.

A few months later, the 1878 federal election occurred. Prime Minister Mackenzie and his Liberals were defeated and Sir John A. Macdonald and his Conservatives were returned to power and formed the government. Since the political complexion of the new House of Commons was different, it revisited the Letellier affair. This time, the censure motion carried in the House of Commons on March 13, 1879.

Honourable senators, the result of these successful censure motions in both Houses was the removal of Mr. Letellier. I will share with senators the actions of Prime Minister Sir John A. Macdonald as recorded in a Privy Council document entitled "Report of a Committee of the Honourable the Privy Council approved of by His Excellency the Governor General on the 25th day of July, 1879.'' That report states:

That...Sir John A. Macdonald, as first minister, waited on your Excellency and informed you that after the resolution of the Senate in the last session of Parliament, and the resolution of the House of Commons just referred to, it was the opinion of your Excellency's advisers that the usefulness of Mr. Letellier as Lieutenant-Governor of Quebec was gone, and they advised that in the public interest it was expedient that he should be removed from office.

Honourable senators, during our deliberations on Bill C-20, we listened to a lot of the nonsense about the Senate and about what it could and could not do. I would submit that, if any such motion were to pass here, it would have significant and serious political effects.

This Privy Council document clearly stated that the reason or the assigned cause for Letellier's removal was the motions of censure that passed first in the Senate and then later in the House of Commons. The report continued:

He further begs to report that the cause to be assigned for such removal according to the provisions of the 59th section of the British North America Act, 1867, is that after the vote of the House of Commons during last session and that of the Senate during the previous session Mr. Letellier's usefulness as a Lieutenant-Governor was gone. That your Excellency's advisers are fully aware of the responsibility of making this recommendation, and they feel it their duty to accept it in every sense.

Honourable senators, the Marquess of Lorne removed Lieutenant-Governor Luc Letellier on July 26, 1879, and appointed Theodore Robitaille in his stead.

As I have pointed out, the Letellier affair is a classic example of the result of a successful vote of censure, a vote of confidence in the Senate and speaks very eloquently to the constitutional impact and the proper constitutional role of the Senate.

Honourable senators, there are many examples of this. I wanted to lay out this particular example because the gentleman in question who was removed had been a senator and, in fact, a Government Leader in the Senate. Clearly, this goes to the whole question of the Senate and politics.

Honourable senators, Bill S-8 seeks to amend 27 statutes. These amendments would place the Senate on an equal footing with the other place. For example, the provisions of the Yukon First Nations Land Claims Settlement Act presently requires that a final or transboundary agreement would only be laid before the House of Commons. Bill S-8 would amend that act by requiring those agreements to be laid before both Houses — in short, both the House of Commons and the Senate. Bill S-8 would also legislate that Senate committees review the operations of certain statutes. For example, Bill S-8 would amend the Employment Equity Act to require a Senate committee review. Presently, there is only a reference to a committee of the other place. These are just two examples of what Bill S-8 would correct.

This bill, if passed into law, would restore the Senate to an equal position with the House of Commons in many statutes. It is lamentable, honourable senators, that the Senate finds itself in a situation where so many statutes need to be amended.

Honourable senators, we have a constitutional duty to perform as an integral part of the Parliament of Canada. Our role in legislation is clearly defined in the Constitution of this land. I believe that we cannot escape our responsibilities and that we must act. Bill S-8 is a good first step.

In conclusion, I would encourage honourable senators to support Bill S-8. Once again, I should like to thank Senator Joyal for taking this initiative and for bringing this bill before us.

I would add, however, that I do not want to communicate in any way that I believe this bill to be perfect or that it does not have some flaws. It does. It has some imperfections, and it needs some work. However, I do believe that the bill, in its spirit and in its objectives, and how it sets out to attain them, is an excellent first step. I give my support to the bill and I look forward to a proper study and consideration of the questions and of the issues in committee.

The Hon. the Speaker pro tempore: Although the time has expired, some honourable senators have indicated that they wish to ask questions. Is the honourable senator asking for leave to continue?

Senator Cools: Yes.

The Hon. the Speaker pro tempore: Honourable senators, is leave granted?

Hon. Senators: Yes.

Hon. Lowell Murray: Honourable senators, I may have misunderstood the honourable senator. I want to ask her a question.

Surely the honourable senator is not placing a non-confidence motion in the government passed by the Senate on the same basis as a non-confidence motion in the government passed by the House of Commons in terms of constitutional implications.

Senator Cools: Honourable senators, I wish to thank the Honourable Senator Murray for his question. Certainly, I was not suggesting nor equating the impacts of certain results.

As I said, the Senate is a separate and different institution with a different set of powers. Yes, there is a difference between the Senate and the House of Commons. Yes, they are coordinate institutions. However, the differences, as you know, are largely outlined in sections 53 and 54 of the Constitution. In certain matters, especially on certain, strong budgetary questions, of course the House of Commons has the lead in being able to conduct, to move and to pass votes of confidence.

My essential point is that confidence motions, under certain circumstances, can be passed in this chamber. I would be quite happy to share with you another particular example of such a statute, such as the Auditor General of Canada Act. It is also one of those statutes that states that the officer may be removed by an address of both the Senate and the House of Commons. If the government were to move such a motion in the House of Commons and it not carry in the Senate, because of that statutory requirement that it be approved by the Senate, the government would be forced to resign.

I have that on authority from R. B. Bennett, especially where the Senate's agreement is a statutory requirement. If Senator Murray goes back to the record and revisits the crisis surrounding the Governor of the Bank of Canada, James Coyne, he will find that the question arose then as to why the government of the day was proceeding by bill and not by joint address to remove Governor Coyne.

However, that is an interesting question. One of the reasons I brought it forth today is that these are the kinds of questions that senators need to debate and need to rediscover, because it is as though our entire past has vanished. It would be fitting and useful, I think, for us to discover what our real and true powers are.

The fact of the matter is that it is a well-known constitutional principle that every minister of the Crown and every government of the day should always be seeking concurrence between the two chambers, that the intention of the system and the intention of the British Constitution is that a minister of Her Majesty's Government should seek concurrence. That is the point I am trying to make.

Senator Murray: I do not doubt that that is true. However, a formal vote of non-confidence in the government, if it passes the House of Commons, results either in the resignation of the government or the dissolution of Parliament and a general election.

Senator Cools: I am having difficulty —

Senator Murray: Excuse me, senator, but a formal vote of non- confidence, if it were passed here — and I am not aware of any precedence for that — does not necessarily lead to that result.

Senator Cools: I would again thank the honourable senator for his comment. I believe that the whole question of confidence votes is a mystical one. I would submit that those questions that would cause the defeat or force the resignation of any government remain largely political and are not in the least bit legal.

Senator Kinsella: The answer is "No.''

The remainder of this day's Senate Debates available here.