Hon. Peter Harder: Honourable senators, I rise as an institutionalist, not an activist, but I do feel it is important to put a couple of points to this body as we consider the motion before us.

I would like to begin by recalling a speech given from this very seat by Ian Shugart in June 2023, where he invited us to anticipate the future with him. He said:

In this Parliament, we have witnessed a sea change in the composition of the upper house. If the present government is re-elected —

— and they ultimately were —

— we can expect further evolution of the Senate. The further we get from a party-based Senate, the more entrenched will be the idea of independence and freedom of action. Taken too far, we could find ourselves with many senators effectively setting themselves up as a de facto opposition to the government. We could be left with a frequent or perpetual standoff between the two chambers, as more and more independent senators claim a right to block legislation coming from the elected chamber.

Alternatively, notwithstanding the current attention being given to foreign interference, I am convinced that our democratic institutions and process are healthy enough to give us a different government. Should that be the case, some senators may feel it is their right and obligation to oppose any legislation from the other place if it reflects a philosophical perspective with which they disagree. Given the numbers that can be projected, this could be a recipe for legislative paralysis. To be blunt, either scenario creates the possibility that this institution could be at risk of acting undemocratically — ironically, by allowing tightly held principle to trump constitutional convention and deference to the will of the elected chamber.

In either situation, we have the seeds of constitutional crisis. . . .

He ends by saying, “We have benefited from restraint in this country, and, in these times, we need it again. . . .”

In April 2018, I tabled a document with colleagues entitled Complementarity: The Constitutional Role of the Senate of Canada. I want to briefly recall some of the points made in the chapter labelled “In the Senate, Self-Restraint is the Constitutional Watchword.”

It would be misguided to equate the Senate’s “formal powers” under the Constitution with the Senate’s “role” in our constitutional architecture. This is a false equivalency. The Senate’s powers do not define the institution: they exist to serve it in the appropriate discharge of its role as Canada’s complementary upper house.

To be clear, the issue to be addressed is not how far the Senate can go in its relationship with the House of Commons, for its powers allow it to go farther than any other unelected legislative body in the democratic world. Rather, the question is how far the Senate should go when it challenges the will of the elected chamber.

I continued, saying:

The Senate’s constitutional role is not strictly defined by its constitutional powers. In fact, the method of selection chosen for the Senate in 1867 is a much more accurate indicator of the Senate’s intended function. Senators are appointed precisely because the Founders believed that, without a democratic mandate, senators would have the good sense to thwart the will of the House of Commons in only rare and exceptional circumstances.

It is crucial, in this time of change in the Senate, to recognize the subtlety of the role that the Founders of Confederation envisioned for the Senate. They sought an upper house with enough power to act as a legally effective safety valve against the tyranny of the majority . . . .

The bottom line is that Confederation provided an opportunity to return to the relative safety of an appointed upper house that worked as a complement to the elected lower house instead of as a rival. . . .

The Supreme Court confirmed as much in 2014 when it decided that implementing consultative elections for the Senate would require a constitutional amendment involving substantial provincial buy-in. Having combed through numerous pleadings, historical materials, doctrine, and expert evidence, the Court unanimously opined that under the constitutional architecture adopted by the Founders, our upper chamber was specifically designed to exercise voluntary self-restraint in its relationship with the House of Commons. Consultative elections for Senate seats would have fundamentally upset this balance . . .

The court was crystal clear, and I quoted the judgment:

“The choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process. Appointed Senators would not have a popular mandate — they would not have the expectations and legitimacy that stem from popular election. This would ensure that they would confine themselves to their role as a body mainly conducting legislative review rather than as a coequal of the House of Commons.”

As I commented:

The Supreme Court . . . could hardly have been more explicit: the constitutional design of an appointed . . . Senate reflects the unequivocal intent of the Founders to ensure that the democratically elected House of Commons’ work would be complemented by an appointed chamber of sober second thought. As Smith notes, “rather than compete, the upper house completes the work of the lower house.”. . .

In this context, it was indicated:

. . . that senators were intended to study government legislation by applying their sage and independent judgment, while maintaining a healthy level of self-restraint in challenging legislation that has been passed by the House of Commons. . . .

Hence, by constitutional design, the Senate’s natural bias should be self-restraint. Or, as the philosopher Larry David might advise senators: curb your enthusiasm.

But what is appropriate self-restraint? The short answer: it’s complicated.

And here we are in a complicated situation.

I want to say a few words about where we are. I, at least as an institutionalist, will not give in to the cynicism I have heard even in speeches today about the intent. I don’t believe that the House of Commons is trying to pull the wool over our eyes. I don’t believe that there is a cynical adding of this measure to a bill to prevent us from dealing with the matter contained in Part 4 because it is a money bill.

I believe it honestly was the earliest opportunity for the unanimous view of a minority Parliament, which understood that it had not found the vehicle to deal with it in previous minority Parliaments to move forward. I believe they are probably as surprised as I am that we have had the kind of debate we have had on this measure over the last number of weeks.

So if you are an institutionalist, I think you have to take the other chamber at its word and believe that it is proceeding in good faith.

This amendment, in my view, is overreach. It is overreach with respect to the role of the Senate, and it is born of a cynicism I will not share and I do not believe this institution deserves.

In the second reading speeches, I particularly liked Senator Deacon’s speech because it was broadly informed on the policy issues which have animated the debate in the Legal Committee as well as in this chamber for that second reading speech and third. I went up to him afterwards and said, “It was a terrific speech. If your intent is to educate us and hopefully educate the broader public, including, perhaps, the other chamber, on the issues around PIPEDA, I’m all for it. In fact, I would be the first to propose a motion that a special committee of the Senate, not just Legal Affairs, be constituted to do that.”

I was the deputy minister responsible for PIPEDA 25 years ago. It is not as easy as any of the speeches here have suggested. It is a very complicated process of trade-offs and expectations, and the technology around information itself has changed over 25 years, which is why Canada went from being a leader 25 years ago to being a laggard today.

I am always trying to look for constructive opportunities for the Senate to move on issues that it feels are important that are not obstructive of the will of the other place.

Colleagues, I very much urge us not to pass this amendment or, frankly, any other with respect to this measure, but do not give up the discussion and the debate and, in an informed way, move forward so that the environment for legislative action can be more mature than it has been over the last three years.

While I welcome the reference to the Legal Affairs Committee for Part 4, I do not welcome the amendments placed before us. I believe that it is important for us to have, particularly in a minority Parliament — our third in a row, by the way — which is a new government. I know some people will think this is the tenth year of the Liberal government. It’s the first year of the Carney government.

The relationship that it forms of what an independent Senate should be will be shaped by how the independent Senate works. The biggest threats to an independent Senate, frankly, are independent senators in our behaviour, negotiation and relationship with the other chamber.

I, for one, believe in the model that we constituted now almost 10 years ago, and I would urge you to think about the longer term and consider how we can be an instructive partner in the legislative dialogue between the other house and our chamber.

For that reason, colleagues, I urge you to reflect for a moment, breathe deeply and ask, “What is in the interest of the institution in the longer term?” Please, let’s move on.