Speech on the motion to authorize pre-study of Bill C-13
Honourable senators, I rise today to speak to Motion No. 41. As you know, this motion is very similar to Motion No. 42, which we will also be debating later this day.
I oppose both of these motions for the same reasons and will thus make most of my remarks on the motion before us now, although my arguments apply equally to both motions.
The motion before us now is asking:
That, in accordance with rule 10-11(1), the Standing Senate Committee on Official Languages be authorized to examine the subject matter of Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts, introduced in the House of Commons on March 1, 2022, in advance of the said bill coming before the Senate; and
That, for the purposes of this study, the committee be authorized to meet even though the Senate may then be sitting or adjourned, with the application of rules 12-18(1) and 12-18(2) being suspended in relation thereto.
Colleagues, pre-studies are a legitimate tool for the Senate to use at its discretion. They have been used many times in the past and will, undoubtedly, be used again. However, when considering whether to authorize a pre-study, it is imperative that the Senate consider if the request qualifies as a legitimate use of pre-studies.
The Senate rules do not give any criteria regarding whether or when pre-studies should be used. Rule 10-11(1) simply says:
The subject matter of a bill originating in the House of Commons may be referred to a standing committee for study at any time before the bill is received in the Senate.
This means, colleagues, that in order to determine the criteria of what constitutes the legitimate use of a pre-study, we need to take a look at the historical practice of the Senate, and then we must consider the purpose of the requests before us in that context.
Over the last 150 years, 193 pre-studies have been approved by this chamber. That is fewer than four bills per year. Of those, 103 were bills that went to the National Finance Committee or the Banking Committee, and the majority were bills amending the Income Tax Act, the Bank Act and the Combines Investigation Act.
In other words, they addressed matters typically dealing with budget bills or the implementation of other policy measures with broad support. The issue to be considered in committee pre‑studies was rarely whether the policy should be implemented, but rather how.
These were pre-studies initiated for procedural or policy purposes. This is a legitimate use of pre-studies in the Senate.
Pre-studies that are authorized for procedural purposes fall roughly into three categories. One, they can be implemented for the purpose of soliciting amendments prior to passage in the House of Commons. This is done in order to prevent having a Ping-Pong match between the two houses where the legislation goes back and forth with amendments.
To prevent this, the government will ask the Senate to consider a bill ahead of time so that any proposed amendments can be incorporated into the bill on the House of Commons side. The last time a pre-study was used this way was for Bill C-23, An Act to amend the Canada Elections Act and others, in 2014. On March 24, 2015, Senator Grant Mitchell told this chamber that in his view this was an excellent reason for a pre-study. I will quote Senator Mitchell. I will not do it in Senator Mitchell’s voice, although I would like to try:
We have had an experience in the not-too-distant past where a Senate pre-study of the Fair Elections Act did result in amendments being accepted by the house, before the bill got out of the house, because they were done in parallel. With that in mind and with the minister establishing an open mind, that’s a very positive argument for a pre-study.
I have not very often agreed with Senator Grant Mitchell, but I do here. This is an example of a legitimate reason for a pre-study. But colleagues, that is not what we have before us today.
The second legitimate reason for the House of Commons to request a pre-study from the Senate is to draw from specific expertise of the Senate. If the government thinks that a bill will receive a better study in the Senate than in the House, and it often does, because it is very technical, and the Senate has subject-matter expertise, then a pre-study makes sense.
We saw this in 2019 with Bill C-91, An Act respecting Indigenous languages, and Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. In each case, colleagues, the Senate had expertise which the House leaned on in order to draft better legislation. Our Aboriginal Peoples Committee made numerous amendments, many of which were accepted by the House and incorporated into this legislation.
There have been numerous other times when the government has tapped the expertise of the Senate through an in-depth pre‑study on bills specific to the Bank Act, anti-trust laws and more. There are examples of legitimate uses of pre-studies.
However, in the two cases before us today, there is no indication that this is what the government has in mind. On the contrary, the Senate seems to be viewed as a bit of a nuisance that the government is hoping to get out of the way as quickly as possible.
The third legitimate reason for a pre-study is to expedite the passage of a bill when it reaches the Senate. We have seen this with pre-studies used for budget measures, COVID-related bills and bills that are coming as a result of a decision of the Supreme Court when there is an established deadline.
For example, the Senate conducted a pre-study in 2014 on Bill C-36, an Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts. The Supreme Court had struck down part of the Criminal Code and gave a deadline to Parliament to redraft the legislation. A pre-study was necessary and legitimate to ensure that we met this deadline.
The same thing happened with Bill C-14, the assisted suicide bill. Parliament had a limited window to respond to the court’s decision, and the Senate took that seriously and undertook a pre‑study.
This happened again on Bill C-7, when the legislation on assisted suicide had to be amended due to another court decision. All of these are excellent examples of the legitimate use of a pre‑study in order to respond to an urgent need to pass legislation. But, once again, that is not the case with either Bill C-11 or Bill C-13.
There is no court-appointed mandate and no impending due date that are pressing us to hurry up. On the contrary, colleagues, these bills both need ample time to be exposed to sunlight. There is no consensus on the issues, and there are many concerns.
Pre-studies undertaken because the government is pre‑emptively seeking amendments, planning to intentionally defer to the expertise of the Senate, or there is a need to expedite the passage of critical time-sensitive legislation are legitimate.
This is what we saw during the years of the Harper government.
Between 2006 and 2013, pre-studies were used for seven budget bills, two bills regarding changes to the Criminal Code and two bills on Employment Insurance.
Between 2013 and 2015, the Second Session of the Forty-first Parliament, pre-studies were used for four budget bills in order to appropriately expedite their implementation, two bills on Indigenous or Northern Affairs because the Senate had expertise on these matters and one bill on the Elections Act because many senators were at that time current or former party officials with lots of expertise on elections.
Furthermore, when it came to the Canada Elections Act, the House of Commons waited for the Senate committee to give their suggested amendments so that they could incorporate them into the legislation.
There was also one pre-study on a bill to amend the Criminal Code that I mentioned earlier, which made changes in response to a Supreme Court decision on prostitution, along with one pre‑study on citizenship and one on national security.
So, in nine years, there were 11 budget bills. Non-budget bills totalled 10, or an average of one per year, which included bills on which the Senate had specific expertise or were urgent.
This is entirely different than what we see the government leader in the Senate proposing today.
While legitimate pre-studies are initiated for procedural or policy reasons, the pre-studies we are being asked to approve today have been initiated entirely for political purposes. Rather than seeking to improve legislation, the government seems to be intent on bypassing sober second thought in order to rush the bills through unnecessarily. This, colleagues, is not the role of this chamber.
But this is not the first time this government has tried to use pre-studies as a means of compensating for their ineptitude.
In 2017, former senator Joseph Day said:
The House of Commons should not take for granted that we will bypass or circumvent our normal and traditional practices in order to compensate its own failings in managing its agenda.
Our recently retired colleague Senator Mercer added:
This pre-study will continue to allow the House of Commons to treat the Senate with little or no respect. This pre-study will continue to allow the House of Commons to be lazy and too lazy to get their work done in a timely fashion. Canadians expect better than that. Voters expect better than that. . . .
I have a message for the House of Commons: Stop wasting our time and get off your butts and do your job. Public expectation is that the House of Commons will do its job. We expect the House of Commons to do its job because everyone knows we’re ready to do ours and I will not be supporting a pre-study.
Amen, Senator Mercer.
Regardless of which party is in power, using pre-studies to try to make up for lost time has been long considered a bad idea.
In 2015, again, my friend Senator Grant Mitchell said:
It is a concern, particularly for the opposition side, often to permit or agree with pre-studies. Often there are good reasons given. One reason is the pressure of time. That is the least good reason and often that’s because the House of Commons didn’t show the Senate adequate respect and just dumped the bill on us at the last minute. . . .
Colleagues, I’m not opposed to the Senate authorizing pre‑studies which are for legitimate purposes. But that is not the case before us today.
The House is not pre-emptively and proactively seeking amendments, nor does it have any intention of soliciting the expertise of the Senate in deference to us, nor is there a need to expedite the passage of critical, time-sensitive legislation. Instead, they just want us to hurry up.
This government and this Government Representative in the Senate are seeking to normalize the practice of pre-studies by suggesting that they are a way of ensuring in this chamber that “. . . there be sufficient time for adequate study and debate regardless of how quickly or not legislation arrives.”
I will again quote Senator Gold:
. . . the authority to pre-study proposed legislation is within our power and affords us the time to properly scrutinize legislation without prejudice to the time . . .
Colleagues, with respect, this is nonsense. The Senate doesn’t need to pre-study in order to have sufficient time to do our job properly. Our timetable is in our own hands, not the government’s.
Senator Gold is making the absurd suggestion that the Senate should rush the bills now so we do not have to rush them later. I would argue that we should not be rushing them at all.
The legislation Senator Gold is referring to is not part of a budget implementation act. It does not amend the Income Tax Act. It does not implement policy which has already been considered and approved by the other place. In fact, we have every expectation that before we receive either of these bills in this chamber, they will be amended in the other place, possibly making our work redundant and a complete waste of time.
MP Chris Bittle, Parliamentary Secretary to the Minister of Canadian Heritage, acknowledged that amendments to Bill C-11 were likely a couple of months ago when he said:
We are eager to see this bill before committee and to engage in discussion on how to make it better, ensuring its principles and what we and the minister have set out are met. There is room for amendments and room for discussion, and the proper place is in committee. . . .
The Senate is supposed to provide sober second thought, but that is difficult to do when we won’t even have the final copy of the bill.
This is not a new concern. Our previous colleague Senator Joan Fraser raised it back in 2014 when she said:
As the Leader of the Opposition has just suggested, what exactly are they going to be studying? We don’t know what’s going to be coming to us from the House of Commons. I would gather, from listening on the weekend to various interviews with the minister in charge, Mr. Poilievre, that the bill will be stuck in the House of Commons committee for the next month. Is it still going to be the same bill when it gets out? If not, why are we doing the pre-study?
Senator Mercer made a similar observation in 2017 when he said:
My fundamental question: What if we had time to do the pre-study and in the process, by some miracle, something happened down the hall and they changed something in the budget, they found something wrong and they fixed it while we’re up here wasting our time studying something that’s different? We want to study what’s actually going to be before us.
Last week, Minister Petitpas Taylor launched the consultations for preparations of the 2023-28 plan for official languages. These are very important this year because they will help to inform the work of parliamentarians on Bill C-13. So why is the government rushing Bill C-13 in committee while it launches consultations with the Canadian public on how this bill could be improved and implemented? Would it not make more sense, colleagues, for the Senate to wait until the results of the consultation are in its hands before we do our review of the bill?
Colleagues, the only reason we would be required to expedite these bills is to facilitate the government’s political agenda before it has concurrence in the other place. This is an affront to the role of the Senate, and especially a Senate which the Prime Minister says he wants to be apolitical.
Senator Gold said himself:
I stand here as the Government Representative, and I’m telling you I do not know when it will arrive. It is nonetheless a top priority of the government that is doing all it can to get it to the finish line. . . .
The legislation is “. . . a top priority of the government . . .” so we should apparently just jump into line and accelerate its passage into law.
I would remind Senator Gold that the working majority which the government wrangled out on supply and confidence measures does not give them a majority in the public’s eyes. Politically, they were granted a minority. So it is absurd to suggest that just because something is a priority to them, it suddenly becomes a priority to all Canadians and the Senate should be expected to treat them like they have a majority.
If they want to speed things up, then the NDP-Liberal government has the tools it needs at its disposal. It has the majority of votes in that chamber, and they don’t need our help to get their work done.
I understand that even though they have a working majority in the House, they still can’t get anything done in a timely fashion. But that, colleagues, is not our responsibility to solve.
Colleagues, pre-studies are legitimate when used for the right reasons, but this government wants to use them simply to make up for its own ineptitude. And I would argue that when a government gets in a hurry to pass legislation which has no clear policy or procedural reason to be expedited, we better slow down and take a careful second look.
Contrary to what this government wants us to believe, time is an essential ingredient in the democratic process, especially when a bill is as controversial as these two bills are.
Time allows for increased public awareness, increased public debate and increased public buy-in. It is not just senators who need to be convinced that legislation is worth supporting, colleagues; it is Canadians who also need to be convinced, and this takes time.
Having studies run concurrently in both the House of Commons and the Senate is a terrible way to create public policy. It gives everyone the impression that something is being rammed through Parliament, and it does nothing but stoke the fires of cynicism and suspicion.
I would argue that in today’s environment, that is the last thing we need. We need to restore trust in our public institutions. We need to take the time necessary to do so. Otherwise, we are merely pouring fuel on the fires of disinformation and conspiracy theories.
Senator Dasko spoke for many of us when she said:
. . . We also need assurances that the committee will have the time it needs to do its work. When I hear about the urgent need to pass a bill, I can’t help but wonder whether we will really have the time to review a bill. If we keep hearing about the urgent need, it most certainly raises questions about whether we will be given the time.
It raises questions, indeed, colleagues. On the one hand, we are supposedly not being rushed, but on the other hand, the motion calls for the committees to be able to sit while the Senate is sitting and even when it is adjourned. It is urgent, but take your time. But don’t take too long because it is a priority.
There is no clear rationale for these pre-studies, and we need to deny these motions.
Colleagues, the Senate provides an important role by providing sober second thought. This means that after the other place has sent us the legislation, we take a second, unhurried look at it. We need to be cautious of using pre-studies and only approve them if there is a clear legitimate reason to do so.
Again, in 2017, Senator Day said:
I am generally cautious about pre-study. I know it’s in the Rules. I know it can be a useful tool from time to time. But in my view, it takes us away from being a chamber of sober second thought. It puts us into a concurrent role with the House of Commons, and that has always caused me concern. . . .
Pre-studies of legislation distract from the role we traditionally have of providing sober second thought.
This is why, as Senator Harder put it, pre-studies should be occasional. In May of 2018, Senator Harder said:
. . . the use of pre-study in this chamber is occasional where the appropriate circumstances present themselves. Obviously, that has been more regularly on budget matters.
Senator Raynell Andreychuk noted the same fact in 2011 — when we were in government, I might add — saying “. . . a pre-study is not the normal course of conduct of committees.”
Rather than enabling us to do better work, pre-studies — which have no legitimate basis — hobble us in our work. They do not allow us to do a proper examination of legislation and inhibit our responsibility to provide sober second thought.
Colleagues, I am having a great deal of difficulty seeing the rationale in the motions before us. By the time a pre-study on any of these bills could be started, we would only have two to three weeks left before our summer recess. I’m not sure what to make of this. Does the government expect us to complete a pre-study of highly contentious bills in two to three weeks? Committees typically get one time slot a week.
What if they manage to get the bills over to us before July? Do they expect us to deal with them prior to the summer recess? If so, are they planning on bringing the House back in the summer in order to deal with our amendments? Not likely. Colleagues, we all know they would do no such thing. They would be quite happy for us to rush it through this chamber and even sit in July, but there is no way on this earth that they would deal with any of our amendments until the end of September at the very earliest. The only thing a pre-study would do is serve as an incentive for us to rush through our work instead of taking the time necessary to do it right.
At this point, I can’t help but find myself agreeing with the words of my friend Senator Jane Cordy that she made in April 2014 when she said:
Honourable senators, if I believed a pre-study would make a difference, I would be the first in line to promote it; but I do not believe that it would make a difference. If I believed that the voices of Canadians would be listened to in a pre-study, I would be first in line to promote the pre-study; but I don’t believe that a pre-study would do this. If I believed that the committee doing the pre-study would use the time to travel to the regions of Canada to let Canadians talk to them, I would promote the pre-study; but . . . I do not believe that this will happen.
Colleagues, a pre-study is a tool for urgent matters, yet none of these bills are urgent. The government waited for years to table them and did not care when they delayed it further by proroguing Parliament and then calling an unnecessary election that not one Canadian wanted.
Senator Gold is trying to defend the indefensible. We should defeat these motions, colleagues, and get back to doing the good, important work of the Senate.