Senator Cotter: I have two brief observations, Senator Downe, and I appreciate your observations. In my research, which was not absolutely comprehensive, I found two examples. You identified one, and the free trade agreement was another. I accept the idea that there could easily be exceptions, but, in my view, they have to be awfully big exceptions. I would suggest that this isn’t one. Thank you.

Senator Cotter: But eventually that will occur. At that point in time, the opposition leader will cross over to another seat in this chamber; the government leader presumably will cross over to an opposition or other seat. And I imagine that, as they do, they will stop in the middle and exchange binders. The opposition leader will hand over his or her binder of questions and criticisms, and the government leader will hand over his or her binder of answers or, as Senator Plett might say, “non-answers.”

Senator Cotter: But eventually that will occur. At that point in time, the opposition leader will cross over to another seat in this chamber; the government leader presumably will cross over to an opposition or other seat. And I imagine that, as they do, they will stop in the middle and exchange binders. The opposition leader will hand over his or her binder of questions and criticisms, and the government leader will hand over his or her binder of answers or, as Senator Plett might say, “non-answers.”

When that happens, a more muscular and oppositional and less accountable Senate will have a licence, supported by this potential precedent, to relentlessly impede initiatives of that new government.

So, for senators inclined to oppose the will of the elected body here — and, to be honest, on one or two specific points, I would be tempted myself — it’s important to think about the downside long-term consequences of pursuing that which you might most profoundly desire today, potentially to your regret.

My final point is the degree to which there is a genuine link between the “will of the people” associated with a particular initiative, or whether this is so esoteric a thought, based solely on the fact that a particular government was elected — in some respects, this is the Achilles heel of the Salisbury principle.

Can we point to a particular initiative and evidence that that initiative is connected with the will of the people? There is no incontrovertible evidence, but there is at least a meaningful link if a government, when campaigning for office, committed to an initiative and got elected and is advancing that initiative.

So, added to the general principle, the closer to an electoral commitment the core of a government initiative is, the greater the justification for deference to the will of that other place.

That was the case here. A commitment to reform the Broadcasting Act was part of the governing party’s 2021 electoral platform and Speech from the Throne.

In conclusion, we as a chamber have done our work here. We have examined this legislation extensively and well, as nearly all of us have observed with respect to this legislation, both at committee and here in the chamber. We have offered a series of sober second thoughts, many of which were adopted, some rejected. We have worked out a small constructive non-legislative “sober third thought.”

Our work, within the limits of our constitutional authority, has been done and well done. Going further, resisting further, would be unwise, in my submission, and would push us, in my view, to exceed the limits of our institutional authority. We should celebrate this good work, congratulate those who led the work and pushed us hard to adopt Senate improvements and say yes to this amended message. We should agree to go to P.E.I. on vacation. Thank you very much.

Senator Cotter: Some hope either later or not at all.

Senator Cotter: Yes, I would.

Senator Cotter: I got the question. I’m a bit troubled that someone from your province didn’t at least celebrate my metaphor in the question. Having said that, I’m hardly an expert — may I complete the answer?

Senator Cotter: I will make two observations, if I may, Senator Housakos.

The first is that there is a very good chance that, at some point in the future, someone will make observations like you have just made, and you will respond just like I have.

My second observation is that the argument you make is premised on the idea that a continued assertion of parliamentary authority by a non-elected body is one of the ways to improve public confidence in this chamber and the institution of the Senate, and I think that’s a very debatable proposition. Thank you.

Hon. Brent Cotter: Honourable senators, I wish to speak briefly in support of the Senate message respecting Bill C-11, as amended by language proposed by Senator Tannas and endorsed, as I understand it now, by the Government Representative.

While I would have preferred support in the other place for all of the amendments that the Senate proposed to Bill C-11, in my view, the acceptance of most of the amendments, combined with a stronger commitment or expression of commitment to independence of user-generated content, meets the legitimate expectations of this chamber.

My remarks will be focused less on the bill itself — Senator Cardozo did a great job of addressing those questions — but more on the institutional role of the Senate and the limitations of that authority in our constitutional framework — the partnership, if you will — between this chamber and the other place and Canadians.

Let me start with a metaphor. Many of us are in romantic relationships. I want you to imagine that in such a relationship you have agreed that your partner or spouse gets to decide each summer where you take your vacations. This year, your spouse or partner indicates that the plan is that you will vacation for two weeks on Prince Edward Island. You listen but indicate to him or her that you would prefer two weeks in Regina.

The reply from your spouse or partner is, “Okay, I listened. I will adjust the plan. We will spend a week on P.E.I. and a week in Regina. Since you like the beach so much, we’ll get a cabin near the ocean.” You hear the reply and respond, “No, I really want us to go to Regina for two weeks.” Not surprisingly, he or she responds, “Which part of ’I get to decide on vacations’ do you not understand?”

More significantly, this way of reaching — or not reaching — decisions can strain and, eventually, potentially jeopardize the whole relationship.

In the context of the relationship — or institutional partnership — between the Senate and the other place, questions of this nature are significantly more important. And the terms of the agreement on “who gets to decide” is a deeply embedded form of agreement — not a conversation between the leadership of the two houses but an agreement embedded in the constitutional architecture. It is a non-negotiable set of terms of the relationship.

On the question of who decides and how many times the partner without the final decision-making authority can say, “No, I want to go to Regina,” there are a few markers.

I am not an expert on these questions, but I am indebted to others for guidance on this fairly grand question. I would like to make a few acknowledgments first. The magnificent Senate book, Reflecting on Our Past and Embracing Our Future, edited by Senator Seidman and former Senator Joyal, offers guidance on the Senate, its authority and the limits on its authority. Professor Emmett Macfarlane recently published a book called — not a particularly elegant title — Constitutional Pariah. I also refer to the Supreme Court of Canada decision in Reference re Senate Reform in 1914, and the material available on the scope of upper house authority written about and analyzing the Salisbury Doctrine, gathered for me by the Library of Parliament. Senator Quinn’s own staff has done work on this, and I am indebted to that work.

Parenthetically, I recommend these and probably other background materials, and I wish I had read them when I first arrived in this place.

The principle with respect to Salisbury — I will mention just briefly — has a very specific history in the British House of Lords, but it is essentially this: that the upper chamber should show deference to the elected house’s policy and legislative agenda, particularly if they are part of an election platform to which the governing party made commitments.

Now to my points. I’ll not argue that the Salisbury principle is a convention entirely applicable to our framework, but it does offer guidance on what I will call the limited democratic authority of a non-elected house of parliament.

In a much more profound way than my continued objection to vacationing on Prince Edward Island, the continued objection to the will of the other house challenges the relationship itself, and it’s useful to keep in mind that the structure of the relationship is actually a bargain between parliamentarians collectively and the people we represent — and something that we tinker with at our peril.

The basic argument that implicitly represents the foundation of this bargain is that the will of the elected body represents, in an instrumental way, the will of the people. And if the will of the elected body gets it wrong, there is a political mechanism — elections — by which the members of the elected body and the government that leads that elected body can be held accountable. This cannot be said to be the case of this non-elected chamber.

I have one other point to make about this logic but want to inject, at this point, two observations that I think are highly relevant to this chamber.

We have a degree of independence and a freedom from accountability highly different from the other place and different from nearly every other public institution in our country. As was discussed as recently as yesterday in the discussion on the issue initially raised by Senator Downe, a combination of the principle of parliamentary privilege, the expectations upon senators to speak up boldly and strongly and the limited authority of the Speaker to regulate remarks identifies a remarkable degree of independence for senators.

On this point, some have argued that this expands our “freedoms” as senators, so to speak. In my view, the opposite is true; that is, it requires us not to expand the scope of our freedom from constraint but to personally self-regulate that authority for the sake of and out of respect for the institution itself.

Such is the case, too, with institutional decision making by the Senate, such as whether to continue to press its view with respect to aspects of the amendments to Bill C-11 which were not adopted by the other place. That is, “I still want to go to Regina on vacation.”

The second observation I would make is that a more muscular and non-elected Senate, asserting its will in the form of — let me call it — “sober third thought,” particularly driven by political perspectives, has a potential boomerang effect. In this respect, at some point, there will be a change of government. Some hope soon.