Senator Housakos: Now, at the end of the day, colleagues, let’s be clear: Senator Dalphond and Senator Cotter, we get our legitimacy when we speak for voices from those who feel they haven’t been heard in the House and other places. That’s where we get our judgment day.

The risk we have — and I’ve seen it in my 15 years here many times, with all stripes of governments — very often we acquiesce to the will of those who brought us here. When we acquiesce to the will of the executive branch who brought us here, we silence those constituents who are always calling upon us to represent them and speak for them.

Senator Cotter, I thank Senator Downe, because he has been here longer than I have and he appropriately pointed out that the Senate has exercised its constitutional authority on a number of occasions when the Senate thought we were speaking for a large number of Canadians who felt the executive branch was imposing legislation upon them that they thought was so egregious that we were their last hope to stand up in their defence.

When we choose not to do that for a variety of reasons, I believe — and again, if we listened to Senator Joyal on his way out of this place — this place loses a notch of credibility in the eyes of the public. All of the new senators who came here after me, you all know the biggest challenge we face is our legitimacy, because we’re an appointed body. Too often, I’ve seen a large number of voices in this country — it doesn’t matter if it’s Indigenous people, underprivileged people — whatever the issue may be at whatever time — we agree or disagree — whatever side of the fence you stand on — but a lot of those groups feel that we always acquiesce more often than not to the executive branch. We have heard the argument, both in the media and from the public: “You guys are a rubber stamp.”

So, this is the one occasion where I disagree with Senator Dalphond and where we can exercise our constitutional rights when there is such an outcry. As Chair of the Transport and Communications Committee — I was there on the front line with my colleagues — there is a clear lack of consensus.

There is a particular divide between generations in this country. I think we will also be sending a strong message to a younger generation of Canadians who are asking themselves, “What does that unelected upper chamber really do?” I’ve seen it among witnesses — vloggers and streamers — who came before our committee, both francophone and anglophone. They were like, “Senator, for the first time, we see there is actually a value for this upper chamber. Please exercise your authority.”

That’s why I am speaking in support of the amendment from Senator MacDonald. I don’t think we will be overstepping or overreaching our authority by sending this message back to the government and saying to them, “We strongly recommend you listen to our sage advice and take note of the amendments that are put forward” — by senators appointed by Prime Minister Trudeau.

Again, I reiterate that this is not strictly a partisan issue, and this is not an issue of us defending — as many are trying to turn this into an issue — the multinational digital companies. It is defending average Canadians who are looking at this institution as their last hope.

I’ve been pleading and begging, both in public, outside of this place, and in this place, for us to do the right thing. We want to send a message of independence. We want to send a message that we will stand with people and not stand on the side of government. This is the issue.

Thank you, colleagues.

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

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: 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.

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: Yes, I would.

Senator Housakos: Would Senator Cotter take a question?

Senator Housakos: Thank you, Senator Cotter. I want to highlight that in our Constitution — in black and white — when the forefathers created this chamber, it was created with the same rights, privileges and authority of the House of Commons — the Westminster system.

The second thing we have to keep in mind, colleagues, is that when this house was created, the “Father of Confederation,” John A. Macdonald, also made it clear that this place would be an independent body from the other place. It was also made clear that this body would speak for the voices that it was felt were not being adequately spoken for in the other place.

Prime minister after prime minister — I can give umpteen examples, including former Prime Minister Chrétien and even former Prime Minister Harper, who had a hard time swallowing the legitimacy of this institution — have always said that when an elected government does something that is found to be egregious by a large number of Canadians, that is when the Senate should legitimately step in to ensure that those voices are heard.

My question is the following: When I hear your speech, I’m very concerned. If the Senate has lost a great deal of legitimacy in the eyes of the public over the last couple of decades, it is because they asked the following question: Is this institution nothing more than a glorified debating society and echo chamber?

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.

The Hon. the Speaker pro tempore: Honourable senators, do we agree to give time to Senator Cotter to complete his answer?

Hon. Percy E. Downe: I thank Senator Cotter for his remarks. I tend to agree with most of them. However, I am sure it wasn’t his intent to not explain the full picture of the role of the Senate over the years.

There are many examples of where the Senate has rejected the House of Commons. Probably the best example is before the 1993 election when the Conservative government made a commitment on the Toronto airport. The Liberal opposition promised that if they formed the government, they would reverse that decision. Mr. Chrétien won the election and formed the government, which held a majority in the House of Commons. The House passed the changes to reverse the decision. The bill came to the Senate, and Liberal senators voted against the proposal as well because they viewed it as retroactive legislation.

Here was a commitment of the opposition party. They ran on it in their election platform. They won the election, implemented what they said they would do and the Senate said no to the elected House of Commons immediately after the election.

There are exceptions to all the rules. In my own view, I don’t believe this is a hill to die on, but there will be cases where the Senate will want to oppose the House of Commons.