Senator Shugart: I put so much effort into writing what I had hoped to say, but it seems like I have finished.

[Translation]

Technically, my comments are in response to the Speech from the Throne at a time in our country’s history that is full of both potential and peril.

It has certainly been interesting to transition from the executive branch to the legislative branch. It has also been somewhat difficult.

Canada is facing great challenges on many fronts: social justice, environmental crises and major economic and international security threats. To survive these realities, let alone thrive, we have to be at our best. The alternative is mediocrity. There is one area in which we need to be better: governance and politics.

[English]

Last week in this place, many honourable senators spoke about the risks to democracy in our country. Today, I would like to add what I hope might be a useful contribution to those observations. I am going to speak about the idea of restraint — an idea, a discipline, that has proven essential in our constitutional and institutional development.

Come with me to our past.

In 1981, the Supreme Court of Canada issued a decision on a reference from the Government of Canada in relation to the proposed package of constitutional reforms. Prime Minister Pierre Trudeau had negotiated with provinces on the package, and, even with best efforts, the negotiations were deadlocked. His question to the court: Would it be permissible to proceed with changes to the Constitution, given the lack of consent from a large majority of provinces? The court’s answer: It would be legal to proceed, but not constitutional. Prime Minister Trudeau took that decision and reconvened the provinces, eventually clearing the way to the furthest-reaching reform of the Constitution in our history.

I have to note — with sadness, of course — that Quebec was not included in that consensus. I also note that the inclusion of the “notwithstanding” clause in the Charter, while anathema to Mr. Trudeau, was essential in reaching agreement on the Charter as a whole — providing, as it did, a resolution of the tension between legislative and judicial sovereignty.

Honourable senators, Mr. Trudeau acted with restraint.

In returning to the negotiating table and accepting the crucial demand of the key provinces, he made the Charter possible. Colleagues, I have to ask if either of the main party leaders today would practise that restraint; after all, Mr. Trudeau had in hand a ruling of constitutional legality from the court.

Now join me in the present.

Only last fall, the Government of Ontario was engaged in a dispute with the Canadian Union of Public Employees in the education sector. Legislation imposing a contract was passed in the legislature, along with invocation of the notwithstanding clause — pre-emptively guarding against constitutional challenge. Strike action followed, as did significant public outcry. The government undoubtedly felt it was within its rights; unions and others saw the action as an assault on workers and organized labour. The issue was resolved when Premier Ford repealed the legislation.

He had a legislative majority. And, while his use of the notwithstanding clause was, in my opinion, wrong, it is there in the Constitution. But, to his credit, Premier Ford acted with restraint.

Some have suggested, by the way, that resolving the “problem” of the “notwithstanding” clause lies in referring the matter to the Supreme Court for a judgment on when and how it should be used. But surely the Supreme Court itself has a direct interest in the matter and could not be the usual unbiased arbitrator. I strongly suspect that ultimately the use of the “notwithstanding” clause can only be resolved by the application of public vigilance and governmental restraint.

Colleagues, I invite you to anticipate the future with me.

In this Parliament, we have witnessed a sea change in the composition of the upper house. If the present government is re‑elected, we can expect further evolution of the Senate. The further we get from a party-based Senate, the more entrenched will be the idea of independence and freedom of action. Taken too far, we could find ourselves with many senators effectively setting themselves up as a de facto opposition to the government. We could be left with a frequent or perpetual standoff between the two chambers, as more and more independent senators claim a right to block legislation coming from the elected chamber.

Alternatively, notwithstanding the current attention being given to foreign interference, I am convinced that our democratic institutions and process are healthy enough to give us a different government. Should that be the case, some senators may feel it is their right and obligation to oppose any legislation from the other place if it reflects a philosophical perspective with which they disagree. Given the numbers that can be projected, this could be a recipe for legislative paralysis. To be blunt, either scenario creates the possibility that this institution could be at risk of acting undemocratically — ironically, by allowing tightly held principle to trump constitutional convention and deference to the will of the elected chamber.

In either situation, we have the seeds of constitutional crisis. An essential ingredient in avoiding or resolving such a crisis will be the practice of restraint. Our Constitution is black-letter law and convention — practices developed over decades and centuries, in which the instinct to exercise raw power is restrained for the common good. Absent restraint, the convention that the Senate’s duty is to scrutinize, amend and pass legislation — balanced against deference to the chamber that most directly reflects the will of the people — is incomplete.

Honourable senators, whether it is what we say to or about each other, or how we learn again to listen and dialogue with others who don’t share our outlook, or how we guard the health of our institutions — we need to relearn the virtue of restraint.

Canada is a big, diverse country — geographically, socially, culturally, economically and philosophically. For each of us, for parties and for institutions, restraint may begin with acknowledging that our point of view — legitimate as it is — is not the only point of view.

We have benefited from restraint in this country, and, in these times, we need it again. May we all find it within ourselves to practise restraint.

Thank you, Your Honour.

Hon. Ian Shugart: Honourable senators, I feel privileged to rise to speak in this chamber for the first time today.