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Speech on C-4: Respect electoral commitments and restore balance in workplace relations

Speech to the Senate on May 30, 2017


Honourable senators, this chamber has received a message from the other place in response to the Senate's proposal to amend Bill C-4 by retaining the secret ballot provisions of Bill C-525.

That change directly contradicts the government's election commitment to Canadians to repeal Bill C-525. Consequently, the other place has rejected the amendment.

The Senate has three possible responses to this message: It can concur; it can insist on its amendment; or it can make a new proposal within the scope of the disagreement.

I rise to submit that this chamber ought to concur with the message from the other place to make Bill C-4 law upon Royal Assent. Allow me to provide some context to explain why the Senate should concur with the message it has received.

At a time of modernization in the Senate, an institutional question, as old as the chamber itself, has regained additional importance: How far can the Senate go, as an appointed and complementary body, in challenging legislation that has been approved by the elected representatives of Canada? The simple answer to this question has eluded senators for 150 years, and perhaps for good reason. Every bill sent to the Red Chamber is a unique product of policy and political context. But the circumstances of Bill C-4 point to a very clear course of action. It represents a clear-cut context where Canadians expect the Senate to respond and respect the choice they made at the ballot box, and justifiably so.

Honourable senators, in pleading for the Senate's deference in this case, I do so from the vantage point of a senator who firmly believes that this chamber, though it is appointed, ought to be robust in its contribution to Canadian public policy.

Only last Friday, on the occasion of the outstanding Symposium 150 Canada held in this chamber, Professor Smith spoke about the crucial role of the Senate in our parliamentary democracy.

For those of you who may not know Professor Smith, he is one of the foremost experts on Canadian bicameralism in general and on the Senate of Canada in particular. Professor Smith aptly referred to the Senate as "a foundational partner in the conduct of good government," adding that:

. . . the Senate of Canada appears to be moving toward an enunciated and, perhaps, in time, robust functional bicameralism.

In my mind, it is crucial to the healthy bicameral partnership described by Professor Smith last Friday that the Senate identifies the circumstances that call for a very high standard of deference to the other place. The Canadian brand of bicameralism ought to be robust, but it must also be functional. That is why, when it comes to election commitments, it has been a long-standing historical practice for the Senate to defer to the House of Commons.

With Bill C-4, the government is fulfilling an election promise. The government promised Canadians that it would, if elected, repeal Bill C-525. The government was elected. It intends to follow through on its promise and it requests that the Senate allow it to do so.

Let's consider some of the factual context. On April 22, 2015, Justin Trudeau, then the leader of the third party in the other place, sent a letter to the Senate leadership, urging this chamber not to pass Bill C-377 and Bill C-525. Writing as Leader of the Liberal Party, Mr. Trudeau stated:

. . . we have . . . committed to repeal both bills should the Liberal Party of Canada form the next government.

A few months later, the 2015 federal election was called. The repeal of Bill C-525 was a central piece of the government's election platform. In fact, in its election platform, the Liberal Party made the following promise concerning unions, and I quote:

We will restore fair and balanced labour laws that acknowledge the important role of unions in Canada, and respect their importance in helping the middle class grow and prosper. This begins with repealing . . . C-525, legislation that diminishes and weakens Canada's labour movement.

And to underline his commitment to this campaign promise, Mr. Trudeau chose a speech delivered on Labour Day to once again state his intention, if elected, to repeal Bill C-525.

No one should be surprised, therefore, that once elected, the government, which received a clear mandate from the people of Canada, followed through to repeal Bill C-525. Bill C-4 does just that.

The Senate's subsequent amendment to effectively restore Bill C-525 has been rejected.

During the Senate's study of Bill C-4, many honourable senators reflected on the age—old question of how far the Senate can go as an appointed and complementary body. I will remind you that in committee study, Senator Lankin said this:

The government is living up to a commitment they made in a campaign. Unless we have regional, constitutional or whatever grounds, I don't know why we're weighing in in this way.

During the third reading debate, Senator Pratte reiterated this very point when he said:

. . . Bill C-4 is a fulfillment of a Liberal Party campaign promise. It is one more reason we, as unelected parliamentarians, should not oppose or amend it. . . .

If we criticize the government for abandoning one of their electoral commitments, surely it would be inappropriate for us to defeat a bill that allows them to fulfill one.

Honourable senators, even more recently, in the course of our vigorous debate on Senator Lang's proposed amendment to Bill C-6, Senator Eggleton clearly outlined the long-standing tradition of this chamber:

. . . when a party promises something in an election and then they get elected and form a government it has been traditional to respect that as being an expression of the will of the people. . . .

By tradition, which has been taken to meaning if they get elected if it is part of their platform, then it should be respected as such.

I also note that, when he appeared before the Senate Modernization Committee last year, Senator Carignan, the Leader of the Opposition at the time, referred to Senator Joyal's book entitled Protecting Canadian Democracy: The Senate You Never Knew.

Specifically, the then leader quoted several passages of the essay written by eminent constitutionalist and former Quebec justice minister Gil Rémillard entitled Senate Reform: Back to Basics. I would now like to quote an excerpt from this text, which is particularly pertinent to this issue.

. . . when a bill under study clearly derives from the electoral mandate of the government, the Senate must recognize the democratic will.

Honourable senators, one of the most notable academic works on the Senate is Professor Andrew Kunz's 1965 monograph entitled The Modern Senate of Canada. In this classic work, Professor Kunz notes that:

It has always been a guiding principle for the Senate to respect which might be called the open and clear mandate . . . the Senate does not stand in the way of passing legislation once the people have clearly registered their verdict.

The common thread of all of these observations is an understanding that the calculus of Canadian bicameralism requires the Senate to follow some best practices. But if the words of contemporary senators and commentators fail to sway you, let me recall the words of Sir John A. Macdonald, who said the Senate should "never set itself in opposition against the deliberate and understood wishes of the people."

Having now received the message from the other place, the "deliberate and understood wishes of the people" could hardly be more explicit. The desire of the people to repeal Bill C-525 has now manifested itself three times: once directly by Canadians through the ballot box and twice indirectly through votes in the other place, where members are chosen by the electorate.

I should add that the bill received support in the other place from four parties, representing a combined 67 per cent of Canadian voters in the 2015 election. As for the message that we received from the other place in response to the Senate's amendment, it received support from 73 per cent of voting MPs.

It is now time for this chamber to defer and allow the government to follow through on its clear and unambiguous pledge to Canadians. Were this chamber to do otherwise, it would chart, in my view, a dangerous course, departing from its role as a complementary chamber of sober second thought.

All of us share a collective institutional responsibility to foster a robust, healthy and functional form of bicameralism. I have trust in the collective wisdom and good judgment of every corner of this place, and I have trust in our joint commitment to safeguard the Senate's role as a complementary chamber of sober second thought, as a partner to the other place, not a rival.

In a case such as this one, Canadians expect us to have the good judgment to defer to the women and men they chose to empower through the ballot box. Let us meet that expectation. For that reason, honourable senators, I ask you to concur in the other place's message with respect to Bill C-4.