Senate Modernization—Fifth Report of Special CommitteePublished on 23 November 2016 Hansard and Statements by Senator George Baker (retired)
Hon. George Baker:
Honourable senators, just a couple of words concerning this particular report. As honourable senators know, I don’t have a prepared speech today, but I’d like to pay special tribute to this in excess of 40 senators who spent three days discussing what needs to be done as far as the Rules are concerned in the Senate. This happened last year. It was organized by Senator Massicotte and Senator Greene, a sitting Liberal independent member and a Conservative member. Over 40 senators responded to a questionnaire, and it was quite dramatic in the questions on which 100 per cent of the senators agreed.
Let me preface my point — my point is quite simple — by saying that, every day, as you all know, I read case law. The committees of the Senate are referenced many more times than committees of the House of Commons. In fact, for one three- month period recently, Senate committees were referenced 17 times more than committees in the House of Commons.
In case law, that means not just our provincial courts, our superior courts, our courts of appeal and the Supreme Court of Canada, but all of the tribunals and quasi-judicial bodies and boards that make decisions on a daily basis in Canada, and they reference Senate committees because of two things. First, the special reports that Senate committees do; and second, especially in our courts, it relates to the intention of Parliament on passing legislation.
In the mid-1990s, there was a study was published by Elmer Driedger and Ruth Sullivan. I always ask the Clerk because the Clerk is very knowledgeable in this area. He has published an incredible amount concerning legislation and the Parliament of Canada. The result of that interpretation of statutes was that one would judge a law based on what the normal intention is but also what the intention of Parliament was in passing the law.
Let me illustrate the point. In the last two months, the Alberta Court of Queen’s Bench, Superior Court of Alberta, 2016, 391, references, at paragraph 126, the Standing Senate Committee on Banking, Trade and Commerce.
The Tax Court of Canada, 2016, TCC 173, at paragraph 240 and 241, again, it’s the Standing Senate Committee on Banking, Trade and Commerce.
U.S. Steel, that case before the Ontario Court of Appeal, 2016, 662, and they reference, again, a report done by the Standing Senate Committee on Banking, Trade and Commerce.
Then we have the Federal Court, 2016, 4,937, references the Standing Senate Committee on Agriculture and Forestry.
We have the Alberta Court of Appeal, on November 15, that was just a couple of days ago, and they reference the intention of Parliament. They quote, at paragraph 104, the Standing Senate Committee on Legal and Constitutional Affairs and their proceedings of Wednesday, February 20, 2008. The Supreme Court of Canada, in this judgment, quotes a report by the Senate on debtors and creditors sharing the burden.
The Supreme Court of Canada, this year again, 2016, 22, references something that’s coming before Parliament now, 159 of the Criminal Code. They reference the background and history, and they go back and say, at paragraph 81:
. . . An explanatory note added by the Standing Senate Committee on Banking, Trade and Commerce, to which the initial bill was referred, indicated that. . . .
And then it continues.
We have R. v. Summers, the Supreme Court of Canada again, the intention of Parliament under that heading, referencing the standing committee of the Senate.
We have the Superior Court of Quebec, 2016, 588, referencing procedures. In this case, one of the intervenors was the Honourable Serge Joyal, but it references questions put by Senator Joyal to Professor Andrew Heard before a standing committee.
The Saskatchewan Court of the Queen’s Bench 2016, 245 references the Senate standing committee. The Federal Court 2016 80 references the Standing Senate Committee on Social Affairs, Science and Technology. They go into the questions and answers of senators during that committee report and then a special report of that standing committee.
On September 9, 2016, the Ontario Court of Appeal references the intention of Parliament, and they reference the Senate. The Trademarks Opposition Board, a rather peculiar board under the Trademarks Act, referenced — I’m not going to go into it because Senator Frum is quoted here liberally, as is Senator Eaton. I don’t know what these matters concern, but I’m sure that Senator Frum would know. Regardless, these were speeches given here in the Senate.
Senator Mockler was in the chamber a few moments ago. What’s known as the Mockler report is the “bee report.” Here we have the Superior Court of Quebec on September 8, 2016, giving a decision on whether that Senate report could be admitted into evidence. I want to congratulate Senators Maltais, Mercer, Beyak, Dagenais, Gagné, Merchant, Ogilvie, Oh, Plett, Pratte, Tardif and Unger. They are members of that committee.
There is another case as well that starts off by saying that the issue has, in fact, given rise to an investigation and a report of the Canadian Senate.
Then I go to one just the other day where a provincial court in Saskatchewan is dealing with an 11(b) argument. We have all heard of these cases where persons who are convicted of very serious violent crimes are having their entire case thrown out — stays of proceedings, subsection 11(b) of the Charter. And the Senate committee is examining this. In this provincial court decision of October 17, 2016, R. v. Park, 2016, SKPC 137, the judge starts off by quoting the Supreme Court of Canada for one page in R v. Askov, Justice Cory, and then goes on for three entire pages and quotes:
In August 2016, The Standing Senate Committee on Legal and Constitutional Affairs released its interim report . . . .
That’s how up to date we are in the Senate with our contribution to case law in Canada on a daily basis.
That’s the role of the Senate, as far as I can see; that’s the primary role. It’s a role that the House of Commons no longer has. They’ve abrogated their responsibility as a legislative body. We’ll soon see bills enter here that have deemed to have passed second reading, deemed to have been sent to a committee, deemed to have been reported and deemed to have been read a third time. Nothing happened to those bills. You’ll see the list pretty soon. Christmas is coming up, and it’s up to the Senate to provide that interpretation in our committees.
Now, why am I suggesting all of this? Why am I mentioning this? It’s to make one point. The meeting we had here last year with over 40 senators attending was unanimous on two things. The first was to do away with Question Period. One was to eradicate not one single senator, and they all signed on the dotted line. Senator Greene and Senator Massicotte, if he were here, could give testimony to that. It’s their report.
They said they wanted to get rid of politics in the Senate.
Senator Cools: Hear, hear.
Senator Baker: That’s number one.
Second, they wanted more time in the Senate dealing with our committees.
It’s rather embarrassing sometimes when you go to a university and you’re talking to a group of students — 200 to 300 people — and I’ve got another one scheduled for January — and somebody pops up and asks me about a report of the Senate, and I have to say that I didn’t sit on that committee. Usually, I don’t know what the content of that report is.
People who belong to committees here know what is going on in those committees. The general opinion of those senators who met was that that period of time, Question Period, should be devoted to committee period and have a total examination of what’s going on in our committees — the real value of the Senate.
Over the years, I’ve noticed that what we have now is a Senate that has contributed more to case law than any other Senate in our history. We’re quoted more, and we’re used more. Now with these new senators, that’s going to increase because of the expertise of our new senators.
So my simple message is that in the reorganization of the Senate, we devote more time to our committees, expunge Question Period from the procedure of the Senate — expunge it — look at the real value — our contribution of the Senate — and on an urgent basis make sure that the independent members are a part of our standing committees.