Canada, Senate Debates, “Motion for Delay of Debate on Resolution for an Address to Her Majesty the Queen—Debate Adjourned”, 32nd Parl, 1st Sess (17 February 1981)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1743-1752.
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SENATE DEBATES — February 17, 1981
MOTION FOR DELAY OF DEBATE ON RESOLUTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN—DEBATE ADJOURNED
Leave having been given to proceed to Motion No. 2:
Hon. Jacques Flynn (Leader of the Opposition), pursuant to notice of Friday, February 13, 1981, moved:
That the Senate do not consider approval of the report of the Special Joint Committee on the Constitution, or the resolution based on that report before the House of Commons has disposed of them.
He said: Honourable senators, I imagine that I must speak in favour of this motion since—
Senator Perrault: Not necessarily.
Senator Olson: No, you are not in favour of it.
Senator Flynn: If you say that you agree with the motion, 1 will resume my seat right now. The motion speaks for itself. Last Saturday morning I had forgotten about the matter, deciding to prepare later whatever I would say tonight. While reading the Gazette of Saturday, February 14, I noticed an article entitled: “Constitution in home stretch before London trip.” I quote from that article:
A parallel debate in the Senate is expected to be shorter and more peaceful. As committee co-chairman Senator Harry Hays (Liberal-Alberta) told a press conference yesterday: “Our people are pretty well in favor of the package and seeing as we’re a long way from the bathroom facilities, I think that those in the opposition— looking at their age—I think we’ll whip them pretty fast.”
That article did not make me very optimistic as to the result of my motion. Now, I know that Senator Hays, the joint chairman of the committee, has had problems because sometimes he speaks before he thinks.
Senator Muir: He has problems with many things.
Senator Olson: Also a high level of success.
Senator Flynn: I thought it was rather amusing. However, we will see as we proceed with this debate whether Senator Hays’ opinion is the opinion of the government or of the majority in this house supporting the government.
There are three main reasons why my motion should be passed. First, the precedents. Second, the importance of the matter. Third, it is a strategic problem for the Senate—not for the political parties but for the Senate.
As for the precedents—
Senator Lamontagne: What is the fourth one. You said there were four.
Senator Flynn: No, I said there were three.
Senator Asselin: Wait a minute, there is perhaps a fourth one.
Senator Flynn: The fourth point will perhaps be made by Senator Lamontagne when he will support my proposal.
I return to the matter of precedents. I may have erred-and it can happen to me, Senator Lamontagne, if you can imagine that! However. since the Statute of Westminster, the only point that seems important to me is that if we left in London in 1931 the responsibility of any legislation amending our Constitution, it was at the request of the provinces. This is history. However, some amendments were made to the Constitution when unemployment insurance was implemented, and they were approved by the provinces who wanted to give up that burden. Now, this is not the problem, it has been passed by the Senate and the House of Commons.
But let us talk about 1949 which, in my opinion, is the important point in constitutional amendment debate. Since then, the only part of our Constitution which still remains the responsibility of Westminster is the part that concerns both the provinces and the federal government. In 1949. we patriated all the provisions that dealt exclusively with the federal government. I think that even as far as the 1949 amendment is
concerned—unless I am mistaken, I did not have time to check that particular case—Mr. St. Laurent said that it had nothing to do with the provinces, but that the federal government and Parliament were exclusively concerned.
Senator Lamontagne: That is not what your party said at the time.
Senator Flynn: Maybe not, but it should be noted, as Senator Lamontagne will certainly remember, that the Premier of Nova Scotia, Mr. MacDonald, was not very happy with this amendment, and neither was Mr. Duplessis. And that is why we have section 91.1 which is very exclusive and which states that what remains over there is what concerns provincial governments and legislatures, as well as the conditions which affect the two levels of government. I think that during an earlier debate, I mentioned that when Mr. St. Laurent had applied to Westminster for this change, he had thought—and that is the opinion expressed by Mr. Pickersgill in his book entitled My Years with Mr. St. Laurent—that all subsequent change would require the unanimous support of the provinces. He felt that it had not been necessary then, because his application dealt only with the patriation of the part of the Constitution which is the exclusive responsibility of the federal government.
In any case, from that moment on, we have the following precedents: in 1951, section 94.A dealing with old age security pensions, and this amendment as passed by the House of Commons on May 5, 1951, and later by the Senate on May 8, had been introduced first of all as an Address. But they had taken the trouble, as suggested then-by Senator Hugessen, to print as an annex to the official report the correspondence exchanged between the federal and provincial governments to make sure that it met with the approval of the provinces.
In any case, what I want to say is that this was passed first by the House of Commons, and later by the Senate; it was not done simultaneously.
Then, in 1960, there was section 99.1 concerning the retirement age for judges. This amendment was approved by the House of Commons; the Address was approved on June 14, and it was only on July 13 that the Senate approved it, after making an amendment. I believe that Senator Croll was there at the time. The Senate amended the resolution by removing the reference to county or district judges and restricting the amendment to superior court judges. Therefore, this did not occur at the same time, but later on, and the Senate amended the Address and referred it back to the house, which accepted the amendment.
In 1964, another amendment was made to section 94.A concerning supplementary benefits and survivor entitlements for old age pensions. This amendment—it was, of course, highly technical—was passed more quickly as it was approved by the House of Commons on June 19, and by the Senate later the same day.
There is therefore no precedent for a concurrent discussion on an Address to Westminster to amend the Constitution. There is no precedent for a simultaneous discussion in both houses. Generally, the procedure is for the House of Commons to say “we” and to leave a blank space so that the words “the Senate and” can be added to the “we”, meaning the House of Commons, “requesting that Her Majesty lay before the Parliament a measure hereinafter set forth—”
Senator Frith: But because of your motion, we are not having a simultaneous discussion.
Senator Flynn: I do not understand what you mean.
Senator Frith: Our discussion is not starting at the same time as in the House of Commons because we are now discussing your motion.
Senator Flynn: This is hair-splitting. Once again, if you want to accept my motion, I shall sit down immediately. He was suggesting that we would start on Thursday, when the debate in the House of Commons will go on for weeks. We would therefore be having simultaneous debates in both houses on the same address.
Senator Frith: Yes.
Senator Flynn: You were saying that we are not discussing the Address this evening at the same time as the other place and that we are therefore not having simultaneous debates.
Senator Frith: If that is the case, I do not understand what you are getting at.
Senator Flynn: I think that your point was too subtle and perhaps not really relevant in these circumstances.
Senator Frith: Are the precedents of 1951 and 1960 the only two you found? For my part, I found four earlier ones starting with 1940.
Senator Flynn: Yes, I am aware that there were four before that. But there were two decisions concerning only a distribution of seats which were highly technical. In any event, I believe that since 1931 there have not been simultaneous debates.
Senator Frith: In what sense?
Senator Flynn: In the sense that the Senate was invited to approve the Address once it had been adopted by the House of Commons. It is in that sense that I drafted my motion. Here is what I am saying: let us wait until the House of Commons has disposed of the proposed resolution or the proposed Address before we debate it here; that is my proposal. I think it seems obvious that that is what I am proposing, unless I am deluding myself. I do not know, but naturally I thought I was dealing with at least grade 10 students, not grade 2—
Senator Riel: You do not seem to be very convinced.
Senator Flynn: With you it is difficult to be convincing in any case, but that is the least of my worries.
Senator Molgat: As a teacher or as a student?
Senator Flynn: As a teacher I would always follow your example; only Senator Molgat with his tender and flute-like voice is typical of a primary school teacher.
Now having said that—I wonder if Senator Riel wants to say something to me?
Senator Riel: We understand what you want; you want it to be subsequent, not concomitant?
Senator Flynn: Right on.
Senator Riel: Is that what you mean?
Senator Flynn: I thought everybody had understood, especially a well-informed lawyer like you, Senator Riel. You are used to pleading cases, it is not necessary to dot all the is for a man of your intellectual calibre. So, who else now has something to say?
Senator Asselin: I believe Senator Denis wants to say something.
Senator Denis: Come to the point!
Senator Flynn: I have just explained to you that the precedents suggest that the Senate ought to consider this type of resolution and this type of Address only after the House of Commons is through with it.
Senator Denis: There have been others as well according to Senator Frith. There have been other cases when it was debated at the same time.
Senator Flynn: No, not a single one.
Senator Asselin: No, that is not the way you see it.
Senator Flynn: According to the research I made, there is not a single one. The only one which comes very close is the address dealt with in 1964. That Address was passed by the House of Commons on June 19 and the Senate passed it a few hours later. The Senate received the message and did pass the Address.
In those days, in almost every case, very technical problems were involved and this brings me to my second point. Today we do not have before us a matter which is as limited or as easy to consider as those we had previously. Here we are dealing with very fundamental amendments to the Constitution.
According to the Prime Minister, this is the beginning of a new era. Canada has at last its own Constitution, imagine! All we are repatriating after all is that part of the Constitution which concerns the provinces and not the federal government. Secondly, we have the Charter of Rights. That is another problem, namely entrenchment. It does not solve the fundamental problem we have been discussing for years, which is the division of powers. When people suggest—and here, of course, I am a little off the subject but I was pushed into it—when people suggest that this proposal is in response to the referendum in Quebec, I tell you frankly that patriation of the Constitution and the Charter of Rights are the least of concerns of Quebecers who were rather counting on a redistribution of powers. At all events, we shall discuss that matter in due course because as regards the problems which arise concerning our federation—and that is why that province is currently opposed to the federal appeal to Westminster-we have a very important question, of course. Furthermore, it is very controversial. For example, the proceedings and the work of the joint committee indicate that a host of views were expressed, and that differences in views are focused on the central point of unilateral action. Concerning the unilateral action of both the government and the federal Parliament, the views expressed reveal that 33 groups out of 56 expressed their disagreement whereas 23 were in agreement. Some 42 out of 134 individuals who expressed their views agree whereas 92 disagree.
So this is indeed a very controversial issue. Strategically, the debate which is under way in the other place may bring about certain changes.
I do not know whether it was Senator Olson who said a while ago, “Oh yes?” I am interested in that answer. You agree that there can be changes?
Senator Asselin: No, there will not be any.
Senator Flynn: So it is decided, there will not be any.
Senator Asselin: That is even worse.
Senator Flynn: That is your opinion, Senator Olson, you think there will not be any.
Senator Olson: I was not commenting on what you were saying.
Senator Perrault: We are just listening.
Senator Flynn: Not very well. In any event, it does not matter.
There may be amendments because there were suggestions to that effect yesterday in the other place. Tonight also, Senator Asselin asked the government leader questions on the requests made by the Women’s Advisory Council. The answer was similar to the one the Prime Minister gave yesterday, namely that if the opposition is willing to compromise, the government may grant some of the requests. As some have said, this is really some sort of horse-trading. One cannot deal in this way with fundamental rights.
But, what if Mr. Trudeau makes concessions to this group as he did with the NDP, or with Mr. Davis or others just to get what he wants, that is to get his package accepted like he did with the Senate. He did repeal clause 44 to buy off the Senate; what if he does the same with other provisions of the proposed charter. It might help for the Senate to be made aware of it before there is a confrontation or a fight with the House of Commons. It would be logical for the Senate to consider this resolution of vital importance to the future of Canada only when it knows exactly what the government is driving at, and whether or not the House of Commons is willing to agree to it. We would therefore be able in the Senate to reach a decision in relative peace and quiet and not by exchanging opinions with the other house. That danger is very real if the debate is to proceed simultaneously in the Senate and the House of Commons.
Since it is suggested that the Senate is to reform itself, since we have received the report of the special committee, since we have had all those suggestions about the role of the Senate, I should like to see the Senate really proceed to reform as suggested, and as expected, in order to deserve the confidence the government was forced to show in it by withdrawing Section 44 which would have allowed the House of Commons to abolish the Senate unilaterally, through a simple decision in the other place that would not have required our approval but would have been confirmed by the other place 90 days later.
I feel we must show, without delay, that we can assume our responsibilities. And the way to do so is to wait till we know exactly what the House of Commons or the government has decided to do in the other place. We can then discuss the matter soberly, responsibly, efficiently, and thereby show that this institution really deserves to survive. I
Hon. Raymond J. Perrault (Leader of the Government): Honourable senators, all members of this chamber have listened with a great deal of interest to the arguments advanced by the distinguished Leader of the Opposition in explaining the reasons which prompted him to move the motion which we are now debating. I suppose what Senator Flynn has really said to us is that we are the house of “sober second thought”, that traditionally the Senate is a body which is supposed to reflect on actions taken previously in the other place. In effect, he suggests that honourable senators, in their wisdom, should act to make changes only after the members of the Commons have debated and voted.
It is true that one of the valuable functions of the Senate is to exercise its judgment with respect to the measures sent to it by the other place. The Senate has done that countless times. Honourable senators know better than anyone in this country of the numerous changes in legislation which are the result of official and unofficial work by the Senate—work in the chamber and outside of it. Honourable senators are aware of this process which often sees a minister contacted after a bill comes to us from the other place. The minister is taken into a process of consultation, and ways in which a bill can be improved are often suggested to that minister. This process is a Senate technique—a good and useful tradition. Many worthwhile legislative changes have come about as a result of this process. On many occasions—more often than the critics of the Senate are prepared to admit or, perhaps, know of-the Senate has improved proposed legislation. In this respect, the Senate has proved its worth time and time again.
Some honourable senators may feel persuaded initially to support the view advanced by the Honourable Senator Flynn this evening. Some may sympathize with the view that in the case of these very important constitutional proposals—some of the most important measures ever to be brought before Parliament—it may be a particularly appropriate time for a process of “sober second thought,” with debate and decision in the other place before we discuss it here. However, surely there is a fundamental difference between the normal procedure followed regarding a bill which has been debated in the other place, referred to committee, given third reading and passed, and then sent to the Senate to be considered by us, and the procedure which the government has proposed for the consideration of the resolution recommended by the joint committee’s report, that great report which was produced as a result, in significant part, of the efforts of many members of this chamber. Does “sober second thought” suggest that all measures should be introduced only in the other place, and that only after the Commons has disposed of them should they be sent to the Senate for detailed study, debate and possible amendment? Surely that is a narrow interpretation of “sober second thought.” Isn’t “sober second thought,” as it applies to the Senate, really a state of mind? Is it not an attitude?
Some Hon. Senators: Oh, come on!
Senator Perrault: Yes, is it not really an attitude, an attitude which says: “Look here, now, however this measure comes before us, regardless of the formal time schedule, we are going to take a conscientious, reflective attitude towards the quality of what we do in Parliament. If possible, we shall improve those measures which come before us”?
Whether we have concurrent debate or sequential debate, whether a bill originates in the Senate and then goes to the House of Commons, or vice versa—
Senator Flynn: Technically.
Senator Perrault:—the determination to do our work in respect of a bill or a resolution in a conscientious and effective manner is of fundamental importance.
“Sober second thought,” in that sense, has little to do with formal time allocation, or whether we receive bills or resolutions from the other place, or whether they originate here, or whether we debate sequentially or concurrently.
There is something very different, indeed, unique about these constitutional proposals. Here is not a normal “housekeeping” bill which has been dealt with in some sort of limited fashion by members of the other place—a bill which has been adopted after two or three hours of debate and then sent to the Senate.
In this chamber the report of the Special Joint Committee on the Constitution was tabled the other day. Has there ever been a joint committee in the history of Parliament which has seen a more united and concerted effort by parliamentarians from both chambers to do something beneficial for this country? I think not.
Senator Flynn: What do you mean by “united”?
Senator Perrault: Parliamentarians of all parties united in a concern and endeavour to abide by the highest parliamentary principles. That is what I mean.
Honourable senators, I freely acknowledge the contribution made by the official opposition in this process. They did a splendid job, according to their own lights, insights and instincts. I think the same can be said for all parties on the Hill.
Tle report was produced as a result of 106 meetings of a joint committee composed of representatives of this chamber and the other place; 260 hours of committee time directed towards the study of these constitutional proposals; with 51 honourable senators having participated in that committee’s deliberations. I remember the debate of many weeks ago at which time it was alleged that only a limited number of carefully selected senators would be allowed to serve on that committee and that—
Senator Flynn: To vote.
Senator Perrault:—there was an attempt by the government to restrict freedom of speech. By the time the committee had concluded its deliberations, 51 senators from both sides of the chamber had, at one time or another, served on it with distinction. Let us acknowledge that. This was an exercise of parliamentary democracy of a type we have rarely seen in the nation’s capital.
Over 90 hours were spent on the clause-by-clause study alone of the resolution, and over 130 members of the other place contributed at some point to the hearings as committee members. In other words, a total of almost 190 parliamentarians from the other place and this chamber had the opportunity at one time or another to serve on that committee, and many others attended the committee meetings as observers. Never in parliamentary history have matters related to the Constitution been the subject of such close and detailed scrutiny.
Those honourable senators who believe—and I think quite correctly—in the concept of the Senate as the chamber of sober second thought can feel reassured that a great deal of thought has already been given by members of both houses of Parliament to the subject of patriation of the Constitution and constitutional change. Indeed, the time for sober second thought is not later—it is now. My concern, honourable senators, is that should we adopt this motion tonight, and should we concur in the idea that the constitutional proposals should be debated and decided later by the Senate, that there should be a sequential process that would see the measure debated first in the Commons, I think the Senate could well earn a reputation on this vital issue as the “body of afterthought”.
Some Hon. Senators: Oh, oh.
Senator Perrault: Conceivably, many important decisions could be made before the Senate had an opportunity to enter into an adequate dialogue with the members of the other place. Surely, concurrent debate would be vastly preferable with continuing day-by-day communication established between the two houses—and a sharing of constructive ideas.
Are there procedural deficiencies? Senator Flynn states he has been looking into the record. Certainly precedent indicates that the government is on good ground in proposing this concurrent procedure—the idea of having separate but similar resolutions in the Senate and in the Commons on a matter of joint concern to the two houses.
Senator Flynn: I did not say “separate.”
Senator Perrault: Honourable senators, there is one 1960 precedent.
Senator Flynn: If you say 1960, you are wrong.
Senator Perrault: Senator Flynn should remember 1960 very well. He was Deputy Speaker and surely he cannot have forgotten the events that began on June 14, 1960.
Senator Flynn: It was passed in the house on June 14, 1960. It was sent on July 13.
Senator Perrault: He made reference to it, but what he failed to mention was that when the Commons, on June 14, 1960, passed this resolution, it was rescinded on July 29 because after the Commons had dealt with it on June 14, it went to the Senate and it was amended on July 13—
Senator Flynn: Sure.
Senator Perrault:—and changes were then required. Then it went back to the Commons, where there was a great deal of parliamentary disruption as a result of that process.
Senator Flynn: You don’t want that to happen again.
Senator Perrault: How much better the process could have been had there been a concurrent debate at that time—
Senator Flynn: Please. Spare us.
Senator Perrault:—where an opportunity would have been provided for the two chambers to maintain communications and to determine concurrently at that time to produce the ultimate amendment. Information could have been communicated from one chamber to the other and the amending action could have been taken virtually simultaneously in both houses without the substantial parliamentary disruption which occurred.
Senator Flynn: I am sorry, but that is not what took place. I think you should look at the record.
Senator Perrault: Honourable senators, I have the record here.
Senator Flynn: There was an amendment by the Senate after the house had disposed of it, and then it was sent back to the house.
Senator Perrault: That is exactly what I said. May I just give the sequence of dates again. On June 14, 1960—and presumably Senator Flynn was there as a member of the other place—
Senator Flynn: Sure I was.
Senator Perrault:—it was passed by the Commons.
Senator Flynn: You are confusing the issue.
Senator Perrault: On July 13 the Senate amended the resolution which had been introduced here.
Senator Flynn: It had been passed by the House of Commons first, and then sent here.
Senator Perrault: Then the Commons was required to rescind on July 29, and the resolution, as amended, was passed in the Commons.
Senator Flynn: Yes, that is right.
Senator Perrault: The suggestion that I advance and, obviously, Senator Flynn rejects the idea, is that if there had been concurrent debate—
Senator Flynn: It would not have happened.
Senator Perrault:—the procedural difficulty that occurred at that time would not have taken place.
Senator Flynn: There was no difficulty.
Senator Perrault: Honourable senators, there are a number of other cases that I think might be cited in the course of this debate—
Senator Flynn: Try again.
Senator Perrault:—to reinforce this point of view.
Senator Flynn: You’d better try again.
Senator Perrault: Surely there would be value in having both houses debate the constitutional proposals over the same time period. Should the Senate, for example, debate the motion following adoption of a resolution in the other place, amendments by the Senate different from those made in the Commons would, procedurally, complicate the entire amending process. The Commons would be required to rescind its resolution and begin the debate all over again.
Senator Flynn: Just imagine the tragedy.
Senator Perrault: Honourable senators, I listened very carefully to Senator Flynn’s remarks, and I would ask the same courtesy of having these arguments heard.
Thirdly, without question, sequential rather than concurrent debate in the Senate and the Commons would be extremely time-consuming in light of the very heavy legislative timetable. Time and time again we have been reminded in this debate, and during the debate in the other place, that the goverment should really get on with the task of looking at unemployment, inflation, trade, budgetary matters and energy considerations. The Prime Minister and the government have been accused of spending too much “time on the Constitution and taking up too much parliamentary time on this subject. While it is necessary to devote ample time to the subject of patriation and other constitutional proposals, we believe, along with the opposition, that we should proceed as soon as possible with consideration of many key matters which require attention. Speaking for the government, may I say that we are prepared to proceed with a backlog of very important legislation as soon as this constitutional proposal is disposed of by Parliament.
The point that the government makes is that concurrent debate in the Commons and the Senate would be time efficient without in any way affecting the parliamentary prerogatives of any honourable senator. We do not have time allocation in the Senate. We do not intend to introduce it. We do not have closure. Honourable senators are going to have a full opportunity to debate this matter.
The method of proceeding then, I believe, is efficient. It will give parliamentarians in both houses an opportunity to present amendments, and it will employ parliamentary time to its maximum advantage in the public interest.
Honourable senators, may I remind you of another consideration which is of significance. I touched upon this just a moment ago. The process of concurrent debate would allow for informal consultation between both houses during the course of that debate. I believe that would be a very useful procedure. It would be possible then for a valuable amendment to be adopted in the Senate, and then to be advanced in the other place, and adopted there, if both houses were still in the process of concurrent debate. Otherwise, the parliamentary procedures would be very time consuming as honourable senators are aware.
Sequential debate could create the enormously time consuming complication of one house or the other called upon to rescind its resolution in order to consider, and possibly to accommodate, amendments adopted by the other chamber. I have mentioned already what happened in 1960 and the experience of the Leader of the Opposition at that time.
Senator Flynn: It was a good one.
Senator Perrault: Honourable senators, if the Senate were to debate the resolution and to vote after the Commons, this body would lose an optimum opportunity to bring influence to bear upon the House of Commons debate. Surely, this is a relevant point. If this measure comes to the Senate after the House of Commons has already dealt with it, and after the relevant processes have been completed in that chamber, what realistic opportunities remain for the Senate measurably to affect the thinking of the Commons?
Finally, honourable senators, the procedure the government proposes constitutes, in my view, the most direct way of dealing with the report of the special joint committee. The time for sober second thought, I suggest, is now: after 31 honourable senators have participated in the debate in this chamber on the question of referring the constitutional proposals to a joint committee; after 106 meetings of the special joint committee have been held; after 267 hours have been spent, during which time a totalaof 51 senators have participated. I think we should be prepared, without delay, to consider the resolution which has been recommended by that joint committee. As I have said, surely, if we wait until those in the other place complete their debate and vote, we risk being considered as a “house of afterthought” rather than as a body of “sober second thought”.
However well-intentioned the resolution by Senator Flynn may be, I urge you to reject the motion before you.
Hon. Martial Asselin: Honourable senators, after listening to the speech made by the Leader of the Government, I realize that the important debate to come is not getting off to a good start, and yet the motion presented by the Leader of the Opposition is a reasonable one. It is supported by the precedents I will quote in my speech and which in my opinion preserve the meaning and the essence of the Senate, the very
reason why it was created as the second chamber of Parliament.
However, before coming to that point, the question which is raised, not only in the Senate and in the other place but also among the public is why are we rushed that way? We, from the opposition, have had the same experience in committee. Every single day—and Senator Tremblay could vouch for that as could other senators who attended the sittings of the joint committee—every single day we had to fight to get the majority to understand that we needed more time to study in more depth the document before us and also to give all groups coming from everywhere in Canada the opportunity to state their views before the committee. We had to fight every step of the way to get new delays, and today we are still facing the same situation, we still have to fight to make the point that going about it this way, i.e. studying this document concurrently with the House of Commons, does not do the Canadian people any good. Why do so? I would like an answer to my question. Why, honourable senators, are we rushed again? Why are we asked not to proceed as we usually do, as we have done for so many years, i.e. study legislation from the House of Commons once it has been adopted there? I thought the Leader of the Government would give us sound reasons saying: “Here is the government’s timetable, we have to do it that way because of urgent legislation that needs to be passed.” Of course they talked about inflation, unemployment, the economy. Well, during the two or three months we spent considering the proposed resolution in committee, the government could have brought legislation before the House of Commons and the Senate, and we could have made decisions concerning the economy, inflation and unemployment. Instead, the Leader of the Government would rather not give a reason which could have been fundamental, that is, the urgency of the program on its agenda.
People remember the Senate held a very important debate on the second reading stage and I believe the credibility of the Senate is now quite high in the mind of the Canadian public. Why has the Senate now become suddenly the instrument of the government when its credibility is high in the public mind? It is because of its independence with regard to the House of Commons and the executive power.
Why also did we not decide to pass a resolution which could be different from the one before the House of Commons? That has already been done in the past. Why is it the Senate has to adopt the same resolution which will have been discussed and then passed by the House of Commons?
Honourable senators, such behavior will belittle somewhat the role of the Senate as a sober second thought institution and that could also result in a certain confusion if the rules of both Houses do not coincide.
As Senator Flynn said, according to past practice for the introduction of a joint address, the resolution was referred to the Senate only after it had been passed by the House of Commons and I believe I will recite a few dates which Senator Flynn probably had in his notes and which he failed to mention.
I would like now to put on the record a few precedents in our parliamentary practice which confirm the point made by the Leader of the Opposition. In 1940, the amending resolution on the inclusion of unemployment insurance under clause 91 was introduced in the House of Commons on June 25, was passed on June 25 and was referred to the Senate on June 27, and the resolution was passed on June 27, that very same day by the Senate, since there were two identical addresses instead of a single joint address. I asked the question earlier: Why could we not have two addresses, one from the Senate and one from the House of Commons?
In 1946, another precedent, a resolution asking for an adjustment in the representation in the House of Commons, pursuant to changes in population shown by the 1941 census, was introduced in the House of Commons on May 28, was adopted on June 20, and then referred to the Senate on July 2 and passed on July 5.
The government leader said there were no precedents!
In 1949, as “Senator Flynn said earlier—there was the resolution concerning Newfoundland joining Confederation which was introduced in the House of Commons on February 14, passed on February 16 and referred to the Senate on February 17 and passed the same day. It was always after the resolution had been passed by the House of Commons.
Senator Riel: And not concurrently.
Senator Asselin: That’s a most appropriate word, Senator Riel.
In 1949, another resolution on the right of Canada to amend the British North America Act was introduced in the House of Commons on October 17, it was passed on the 27th and referred to the Senate on November 1, where it was passed on November 9.
Then Senator Flynn spoke about the 1951 resolution on old age pensions. He also quoted cases of amendments dating from 1960, 1964 and 1965. Therefore, it seems to be the established practice, honourable senators, when considering a joint address of both houses, that this resolution be introduced to the Senate only after it has been passed by the House of Commons.
Secondly, I was almost outraged by the remarks of the government leader when he defined the role of the Senate as a house of sober second thought. He misquoted the words used by the Fathers of Confederation, especially Sir John A. Macdonald, when he defined the Senate as he just did.
When it [comes to the role of the Senate, when it comes to constitutional amendments requiring a power of delay and of amendment in relation to the House of Commons, they are upheld so that some control may be exercised on the resolution that will eventually be passed by the Commons. Sir John A. Macdonald said that the main purpose of the Senate was to control unreasonable legislation that could be passed by the House of Commons and that the Senate could improve it by giving it sober second thought.
Even if the amendment on the safeguarded sections of the British North America Act requires in practice resolutions
from both houses, there are two cases in particular in the recent past when the Senate made some changes to constitutional amendments. In 1936, the Senate refused to agree to an amendment which would have established loan boards to consolidate the borrowing power of provinces and which would at the same time have clarified taxation powers.
In 1960, the Senate amended a proposed amendment to the British North America Act concerning the retirement age of judges, as Senator Flynn has mentioned. The Commons had passed a resolution making retirement mandatory for superior and county court judges. The relevance of this amendment for county court judges was questioned, even though the government wanted to maintain the original amendment. However, the Senate passed an amendment to eliminate the reference to county court judges.
Third, a motion to adjourn a debate in the Senate can be moved at any time, as I said earlier, not by twisting the definition of the Senate as Senator Perrault did earlier, but by invoking the principle of this institution, which is to be a chamber of sober second thought. Sir John A. Macdonald did not say, as Senator Perrault has suggested, that it was to be a chamber of simultaneous thought, but rather of second thought.
The policy of the Senate is to stand up to popular pressures and partisan interests which can be the cause of undue influence on the Commons. It is said that the Senate should have a sobering influence on the House of Commons. In fact, it is the Senate which protects the rights of the minorities in the regions and guards the interests of the provinces. In this historical and important debate on the Constitution which is about to take place the Senate will certainly have the opportunity to carry out those responsibilities. In fact, it is not for the Senate to oppose the will of the people but rather to work in the best interests of confederation and not to fall prey to partisanship as might happen to the elected representatives.
The responsibility of the Senate is not to initiate legislation but to control and regulate it. Then, adjournment of the Senate can be moved on a resolution for a Joint Address on the following grounds: as Senator Flynn said earlier and I also quoted precedents to that effect, in the past, resolutions were introduced in the Senate once they were passed in the House of Commons. In this way the Senate could act as a chamber of sober second thought but it can only do so if it keeps its power to delay and amend the resolution as passed in the House of Commons.
Honourable senators, I believe that the request submitted by the opposition is not unreasonable. The Senate must play its role of upper house by pondering upon legislation and particularly upon the amendments that the House of Commons will hopefully bring to that resolution.
It is unfortunate that the Leader of the Government and his majority group provoked such a negative reaction since the debate started on this important resolution that will be introduced in the Senate. Nothing in the proposals put forward by the Honourable Senator Perrault can justify that the motion presented by the official opposition through its leader be denied.
Obviously, if the majority wants a long debate, it only has to keep on acting as it did tonight, reject reasonable requests, turn a deaf ear to anything the official opposition may say and show no cooperation whatsoever.
If the government majority wants to enter the debate in this spirit, I will tell you that we, in the official opposition, are prepared to fight a full-scale, lengthy, tough and hard battle against the government.
If those opposite do not respond with more flexibility to reasonable requests like those we made tonight, well, in my opinion, we will assume that it will not be possible to cooperate with the majority in passing the resolution which will come before us.
Honourable senators, I believe that this debate will show if the Senate deserves to exist as an institution. All those who are opposed to the resolution or the resolution introduced in the other place and which will be introduced here eventually, all Canadians, all pressure groups and provinces who are opposed to this resolution consider the Senate as the existing group in a position to say no to the executive power and to put forward the views of minority groups and the provinces.
I say that the people will follow more closely the debate in the Senate because they already know that in the House of Commons, the majority rule will prevail. Whether closure is imposed or not, at any rate the majority will prevail and the resolution will be passed in the House of Commons.
But the people have not lost hope. These pressure groups which came to testify before the Committee on the Constitution to express differing views consider the Senate as a group of staunchly objective and independent-minded people who are able to pass sound judgment on comments, views or suggestions made before the committee.
I hope that we shall not start tonight to disappoint them. For I believe that the Senate, while debating the resolution before us simultaneously with the House of Commons, may induce us to make serious mistakes, and then we might bring forward contradictory amendments. It will be difficult later on to have a worthwhile meeting between the House of Commons and the Senate in order to correct any eventual mistakes.
On the other hand, if we wait for the House of Commons to complete its debate, to study its amendments on their merits, we could later review these amendments in an independent way and review the resolution sent by the House of Commons. We could make the required corrections and act as we have always done, assuming our responsibilities when we have to amend legislation coming from the other place which we find deficient.
Therefore, even if the majority has already decided to vote against our motion, I appeal to the goodwill and spirit of cooperation and flexibility of the majority, and they will need it during this debate if they want to receive from the opposition the cooperation which they deserve in such an important debate.
But I suggest right now, and in this I express the views of my colleagues, that if the majority and the government leader show such a small measure of goodwill as they have been doing tonight, if the implication is that the motion put forward by the Leader of the Opposition must be rejected without even asking for amendments, for improvements that would lead to a consensus, and such has not been the attitude of the government leader—his reaction was quite simply to ask his group to defeat the motion put forward by the Leader of the Official Opposition—I would caution the government opposite on such an attitude. Certainly if we were offered some consensus, possibly to improve on the opposition leader’s motion, we might have agreed on some working principles. This would have benefited the government as well as all honourable senators, we could have gone on with the discussion of the resolution with a will to improve on the resolution coming from the House of Commons.
Once more, honourable senators, I will support my leader’s motion, and I would ask the government to think twice before flatly turning down everything that. comes from the opposition.
Hon. Ernest C. Manning: Honourable senators, the proposal that has been made by the Leader of the Opposition is reasonable and appropriate, and is certainly in keeping with the traditional role of this house; but, from the remarks of the government leader, I think it is quite clear to all of us that the government had decided to reject this procedure even before the arguments had been advanced. Being a realist, I have no intention of taking up the time of the house in arguing for something which the government obviously has decided to reject, but I do want to raise a couple of points that I hope will be favourably considered by the government members in the Senate or the majority in the Senate.
We all recognize the seriousness of the issue with which we are dealing in the resolution that will be debated both here and in the other place. In the first place we should recognize that in this house, among the government members themselves, there is a more complete representation of this country than prevails in the other place, for here there are government members for every province of Canada fairly equally divided because of the basis of Senate representation, which was intended to offset the dominance of certain regions of Canada which prevails in the other place by reason of representation by population. It seems to me that that in itself imposes on this house an added responsibility. It certainly imposes that responsibility on .the government members in this house, because they are well aware that in many regions of this country what is proposed is rejected almost outright by the rank and file of Canadian citizens, yet many of those areas are not represented by government members in the other place, where over 85 per cent of the total representation comes from only two provinces. Over and above the concept of sober second thought, therefore, there is the other consideration that I suggest is of particular importance in an issue of this magnitude.
I should like to suggest to the Leader of the Government- and I hope he will give my suggestion serious and favourable consideration—that there is an alternative to what he is proposing and what is proposed in the motion now before us, which is to defer all debate in this house until after the other place has concluded its debate. The reasonable and logical alternative, it seems to me, would be to give to the other place a lead time in this debate of at least two or three weeks before this house begins its deliberations. I say that for two reasons. In the first place, it is important, surely, that the honourable senators in this house know the basic positions that will be taken by the government on the amendments that will be proposed and even on the report of the committee as it is now submitted.
I think that as realists we would all acknowledge that after two or three weeks’ debate the government position, at least on the most fundamental issues, will have become quite clear, and that from then on there will be the usual repetition, which is unavoidable in a debate of this kind; but at least the members of this house would, before debating this question, know pretty clearly the position of the government, the position of the majority members in the other place and what their position will be on possible further changes, or the attitude of the report in general.
Bearing in mind that there are more than two and a half times as many members in the other place as there are in this house, it is obvious that the debate there will take some considerable time on an issue of this importance. As the honourable leader said—and I quite agree with him on this point—this is probably one of the most important matters ever to have come before Parliament, and it is almost inconceivable that the government would resort to closure to cut off debate in the other place on an issue of such public importance. If that is a reasonable assumption, then the debate will go on for a couple of months at least. If the other place had a lead time of, say, three weeks to establish their position and make available the information to the members of this house then, because of the smaller number of members in this house, there would still be adequate time for concurrent debate from then on, and it would still enable this house to complete its deliberations at approximately the same time as the other place completes its deliberations.
I earnestly appeal to the Leader of the Government to give the matter favourable consideration. I agree with him that the two resolutions we will be debating are not the same as ordinary legislation in that we have before us a report of the Special Joint Committee on the Constitution, on which this house has been well represented and well served. For that reason, there are arguments for concurrent debate.
However, I submit that we can preserve the traditional role of this chamber. We would have the advantage of knowing the government’s position on at least the fundamental issues involved prior to our debate, if we give them a lead time of perhaps three weeks. I raise the matter now because once this motion is disposed of there will probably be no other appropri-
ate opportunity to raise the matter, because concurrent debate will be insisted on from the beginning. I leave the matter with the Leader of the Government and honourable senators. It will be considered as a reasonable alternative and supported by all members.
On motion of Senator Smith, debate adjourned.