Mr. Badanai:

Had we not had an upper chamber an unpopular and undemocratic piece of legislation would have been written into our statute books. This is just an example that the Senate can check any tendency on the part of the House of Commons to abuse its power. It also safeguards the interests of the provinces, which was envisaged at the time of confederation.

The idea that the upper house is trying to take away the power of the Commons is absurb. As the load on Parliament grows to enormous proportions and the House of Commons can no longer cope with the demands on members, the Senate moves in to shoulder more of the burden. The investigation of such broad and urgent problems as those of the aged, poverty, science policy and the mass media are important examples of the work which the Senate has been able to perform through its committees' system. To abolish the Senate would remove a considerable potential for Parliament, all the more so in view of the pressures imposed upon the standing committees of the House of Commons.

Senator A. W. Roebuck, one of the brilliant minds of our upper House, once said:

In my opinion the strength of the Senate lies in the independence of its members. In our modern form of cabinet government, the Prime Minister and his ministerial colleagues have absorbed, first, the powers of the Crown, and second, many of the former functions of parliament. Parliament is still boss whenever it assumes that role, but ordinarily, and in the course of the multifarious details of government, the House of Commons is the pliant creature of the cabinet. So too the cabinet is the boss of the civil service, but more and more as the detail and complexity of government grows and multiplies, the cabinet becomes the instrument of the civil service.

But not so the Senate. The members of the upper chamber are not dependent on either the government or the civil service. Senators are not seeking promotion or anything else. They have nothing to hope for and nothing to fear. They are as secure in their positions as judges on the bench. The ever-increasing responsibilities of modern government, extending as they do into almost every sphere of public activity, serve as a good reminder of the need of a second chamber.

The House of Commons is always overburdened because of the vast amount of government business with which it has to deal. The criticism is sometimes heard that many matters of national importance receive scant attention. Without a Senate to relieve the pressure, many matters would receive even less attention, perhaps none at all. There is no doubt that the second chamber, properly utilized-and I am convinced that such is the case-helps to relieve the burden of work in this House.

As to the suggestion that the Senate should be an elected body, this view is not generally accepted. The Lord Chancellor of Great Britain, addressing the Commonwealth Speakers' Conference on September 9, 1969, said the following about this question:

The members of the elected house have a certain moral and political authority by reason of the very fact that they have

June 4, 1971

Senate Reform

been elected. If the members of the upper House are also elected, they thereby acquire a measure of moral and political authority which could prompt them to challenge the authority of the lower House and thus make a conflict between the two Houses more likely. Moreover, the upper House needs to be something different in kind from the lower House, and not a pale reflection of it.

I am sure that most Canadians will agree with this assessment of the value of an elected upper chamber equal in power to and which would become a rival of the House of Commons. Fundamental to this discussion is the question: What should an upper House do? Since this matter is being discussed in relation to Canada it will be assumed that it would not be desirable to set up a body equal in power to and which would become a rival of the House of Commons.

Theoretically, the Canadian Senate shares equal power with the House of Commons except in respect of financial legislation, since these powers have never been curtailed by statute as have those of the British House of Lords. The relatively passive role which the Senate plays in the legislative process today has resulted from its own prudence and its acceptance of the fact that power should lie with those who have been directly elected by the people. Former Senator Ross MacDonald, presently holding the position of Lieutenant Governor of Ontario, speaking at the time of the change of government in 1957 when he was leader of the opposition in the Senate, said:

The overriding responsibility of the Senate is to make the constitution work-The Canadian constitution, like all constitutions based on the British tradition of parliamentary government, is a finely-tuned and delicately-balanced instrument. Accordingly, we do not propose to assert our legal rights and prerogatives to the prejudice of common sense or reason, or to the sacrifice of the proper functioning of our constitutional machinery-The Senate was expected by the Fathers of Confederation to act responsibly at all times, and I am confident that it will continue to do so in the new Parliament. We should not- automatically resist every government measure which comes before us. To do so purely out of party considerations would be to hamper any effective government of our nation.

Mr. Badanai:

I thank hon. members for their indulgence. I shall shorten my speech and take only a few more minutes. The thought to bear in mind is that the abolition of the Senate would not strengthen the House of Commons. On the contrary, it would tend to add to the authority of the establishment, the cabinet and the top officials of the civil service. Thus, the abolition of the Senate would end by losing the scrutiny of the parliamentary system as we know it. In the Senate today sits a man who at one time was leader of the CCF, forerunner of the NDP, whom I heard speak in this chamber on more than one occasion in favour of the abolition of the

Senate but who, speaking in the other place, as reported in the Senate proceedings of March 17, 1970, said:

Although a committee of the House of Commons in 1969 recommended a Commons Committee on statutory instruments, the motion before the Senate seems to be the government's response to the important recommendations of that committee. The honourable leader-hon. Mr. Martin-was careful to point out that he was not making that assertion. However, it would seem to be quite logical that his action should flow from the recommendation of the House of Commons committee. The Senate will be undertaking the very important work of this committee.

The government leader presented this motion to the Senate in a very eloquent manner, and I think once again he has demonstrated, in his capacity as leader of the government in the Senate, that he is determined to give the kind of leadership that will result in important activity being undertaken at all times by this chamber. With this kind of leadership the Senate will make a valuable contribution and will be an enduring part of the Canadian Parliament.

This member, far from being opposed to the value of the Senate has become one of its champions. It is worth noting that most of the countries of the world which one would regard as democratic have two chambers. In the Commonwealth these include Canada, Great Britain, Australia, India, Ceylon, Malaysia, Jamaica, Trinidad and Tobago, Barbados, Bahamas, British Honduras and Bermuda. Outside the Commonwealth they include the United States of America, France, Western Germany, Italy, Belgium, Holland, Switzerland, Norway, Iceland, the Irish Republic and Japan.

Mr. Speaker, I submit that a second chamber can relieve the pressure of work on the lower House, which in these days of intense governmental activity easily tends to become overburdened. It can act as a house of review and thus provide a brake on hasty or ill-considered legislation. It can secure for the country the services of men and women who may be unable or unwilling to engage in the political campaign necessitated by an election. It can check any tendency on the part of the lower House to abuse its power. It can represent interests not otherwise represented in the lower House. In short, in a federal state it can safeguard the interests of the component parts of the federation.

Mr. Hubert Badanai (Fort William):

Mr. Speaker, I commend the hon. member for Winnipeg North (Mr. Orlikow); not so much for his view of the upper chamber but for giving members of this House the opportunity to speak about the Senate and what it means to Canada. I am happy to take part in this debate for the opposite reason which the mover of this motion has in mind. He wants a committee to study the value of the Senate, favouring its abolition. I want to strengthen the Senate.

Under the present Constitution of Canada, Parliament consists of the Queen, represented by the Governor General, the Senate and the House of Commons. Whatever arguments may be advanced against this parliamentary structure, aga.nst the monarchy or against the Senate in its present form, the fact remains that this is the existing

system and, therefore, the point from which we are obliged to start. It follows that in any consideration of the future role and composition of the Senate, or of the question of its abolition, the Senate itself should have a vo ce. There is some force to the argument that it would be constitutionally improper for one House of Parliament to consider the compositnn, functions and future of the other place without any reference to that chamber.

The Senate is part of the Canadian structure of government, whether one likes it or not, and therefore has a right to be consulted on any matter of direct concern to it. If the Senate had a record of irresponsible or obstructive behav our, if it could be demonstrated that it was a totally useless body, if it had been a consistent hindrance to progress, then perhaps one could make out a case in favour of the objective contained in the motion under discussion. Since nobody could claim, however, that the Senate poses a threat to Canadian democracy or that it had never done anything useful, it would be difficult to just fy an investigation of the Senate from which the Senate itself was excluded.

It is quite possible that among those best qualified to>

advise on the future role of the Senate are Senators themselves. They are the people with direct, practical experience of the work of the Senate. They are presumably as much aware of the strengths and weaknesses of the Senate as anybody and are certainly well placed to measure its success or lack of it. It is not inconceivable that they might have some good ideas as to how it could be improved. Before any final decisions are taken it would surely be only just and reasonable to hear what the Senators themselves have to say.

Another argument against the motion is that Senate reform is only one aspect of constitutional reform, and constitutional reform as a whole is a subject which is currently engaging the attention of the federal-provincial constitutional conference. The consideration of the future role of the Senate and one of the pros and cons in respect of its abolition should only be made in conjunction with other constitutional considerations. Piecemeal reform of a constitution can lead to dangers and inconsistencies.

The future role of the Senate is hkely to be cruc'ally influenced by other constitutional decisions which will have to be taken. While the federal-provincial constitutional conference will be devoting its attention to the entire quest on of const tutional reform, it would seem quite inappropriate at this stage to appoint a committee charged solely with making recommendations in relation to the Senate without any regard to the constitutional conference which is scheduled for the fourteenth of this month.

The conclusions of the third working session of the constitutional conference of February 8 and 9, 1971, give an important indication of the conference's current thinking. These conclusions registered agreement in principle on a number of important issues, including patriation of the constitution, a formula for constitutional amendment,.

[Mr. Orlikow.)

June 4, 1971

federal and provincial constitutions, fundamental rights and language rights. In any one of these areas it is important to recognize that the Senate could well play a very active and crucial role. Moreover, the constitutional conference envisages that the Senate would be involved at the very outset of the constitutional reform process.

Reference to the Senate by members of the NDP as an old-age home for the party faithful is a cynical statement which reflects the negative attitude of the hon. member's party in general toward an institution which is part and parcel of the government of Canada and performs a very useful duty. The hon. member who proposed the motion asks in effect: Why a second chamber? I wish to point out to the hon. member and to those, who think like him that the second chamber relieves the pressure of work on the House of Commons which, in these days of intense governmental activity, becomes overburdened. As everyone knows, it acts as a reviewer of legislation, providing a brake on rasty or ill-considered legislation.

Hon. members who were here in March of 1961 will remember that the government of the day imposed legislation giving the Minister of National Revenue the final decision with respect to tariff changes, without right of appeal. The resolutions read:

That goods be deemed to be of a class or kind not made or produced in Canada where similar goods made or produced in Canada are not offered for sale to the ordinary agencies of wholesale or retail distribution or are not offered to all purchasers on equal terms under like conditions-

In other words, the minister was to assume the dictatorial power to impose tariffs at his discretion, without giving the importer a chance to state his case. The then Minister of Finance suggested that it was a small resolution, but in reality it was one with big implications extending to the fundamental principle of parliamentary control over taxation, giving the Minister of National Revenue the power to decide, without any review or appeal. Needless to say we, the Liberal opposition at that time, fought tooth and nail against the measure in an effort to get the government to amend the resolution to provide reasonable protection against any arbitrary action by the minister. In summing up the case for the official opposition, Right Hon. Lester B. Pearson said:

We claim that the rule of law is involved in this resolution as an issue. It is not simply a matter of the preservation of the substance of parliamentary authority and rule. We will have nothing to do with the granting of powers vastly in excess of need. Supreme over any all powerful executive, in our view, must stand the authority of a free, sovereign and independent Parliament.

After days of debate the resolution came to a vote and the government, having 208 members against the Liberal is 49 and the CCF's-forerunner of the NDP-eight members, it carried the day in the House, but not in the Senate where Liberals were in the majority. That body refused to approve the legislation and thus saved Canada from one of the crudest autocratic pieces of legislation ever put forward by a Canadian government.

Mr. Hubert Badanai (Fort William):

Mr. Speaker, the mover of this bill is an expert manipulator of the rules and procedures of the House of Commons. Realizing that a private member cannot introduce a bill which would impose upon the treasury an expenditure, he has moved that Bill C-41, an act to amend the Canada Labour

April 30, 1971

(Standards) Code to provide for three weeks' annual vacation after three years of service for all workers, in addition to the statutory holidays to which everyone in the federal goverment's employ is entitled, be referred to the Standing Committee on Labour, Manpower and Immigration which would study the bill and decide on whatever recommendation the committee would wish to make to Parliament.

I cannot help but commend the hon. member for his persistence in introducing measures year after year to give workers additional time for leisure and recreation. I am sure all hon. members are genuinely sympathetic to the objective that Bill C-41 seeks to achieve. A similar bill to this has been introduced by the hon. member for Winnipeg North Centre (Mr. Knowles) on several occasions, as he intimated in his remarks, and in each case Parliament did not see the immediate need for such a measure when more pressing needs were awaiting government legislation.

While the principle of the bill may draw some sympathy, the proposed standard in Bill C-41 is three weeks' holiday with pay after only three years' service. It is, to a great extent, unusually ahead of current practice in government and industry generally. A recent survey of conditions indicates that in industries in the federal jurisdiction only 12 per cent of the non-office employees surveyed worked in establishments where three weeks' vacation with pay was granted after less than ten years' service. The proportion working in establishments where three weeks' vacation was granted after less than ten years was about 15 per cent.

In the booklet "Labour Standards in Canada" issued by the Department of Labour, and dated December, 1965, there is listed at page 50 vacation periods and the vacation pay requirements in the various provinces. I should like to quote from that page. In the federal service the length of annual vacation is two weeks or vacation pay amounting to 4 per cent of annual earnings. In Nova Scotia it is one week or 2 per cent of annual earnings; New Brunswick, one week or 2 per cent of annual earnings; Quebec, one week's regular pay if paid by the week or longer period, otherwise 2 per cent of annual earnings; in Ontario, one week or 2 per cent of annual earnings or 4 per cent, as the case may be, in the event of there being more than three or four years' service; Manitoba, two weeks' regular pay; Saskatchewan, two weeks or three weeks after five years' service. In Alberta it is two weeks' regular pay, and in British Columbia it is two weeks or 4 per cent of annual earnings. On page 50 we also find this passage:

In Quebec, if a worker has worked less than a year, he is entitled to a half-day of vacation for each calendar month of employment; in Saskatchewan, a worker with less than a year's service with his employer may be given one day of vacation for each month.

These changes were effective July 1, 1966. Saskatchewan is the only province with legislation to provide three weeks' vacation with pay, but after five years of service. Having regard to all the circumstances surrounding the

Canada Labour (Standards) Code numerous difficulties arising in applying this bill, if passed, to the small businesses employing only a few persons, I wonder whether it would not be better to leave the question of three weeks' vacation with pay to the bargaining table and the collective agreement rather than imposing a law which would in some cases work hardship.

Annual vacations with pay have been provided for by law in industries subject to federal labour jurisdiction since 1958. The first federal law, the Annual Vacations Act, required employers within its scope to grant their employees one week's paid vacation after one year of employment, and two weeks after two years' service. This act was replaced by part III of the Canada Labour (Standards) Code. The code provides for vacation with pay of at least two weeks after every completed year of employment. Vacation pay is 4 per cent of wages for the year in which employees establish their claim to a vacation. A year of employment, under the federal law, must be continuous with one employer and may be a 12-month period commencing with the day the employee began to work for the employer or any subsequent anniversary of that date; or it may be a calendar year or another year approved by the Minister of Labour.

The Canada Labour (Standards) Code applies to industries within federal jurisdiction, and the only employees excluded are those who are managers, superintendents or persons who exercise management functions, members of the medical, dental, architectural, engineering and legal professions. The provincial laws govern employees in employment within the jurisdiction of the province, with the exception of the classes of the following employees. Farm workers are excluded in all provinces. Also excluded are persons employed in horticulture in British Columbia, in growing flowers, fruits or vegetables in Ontario, and in ranching and market gardening in Manitoba and Saskatchewan. Domestic servants are exempted in all provinces but Manitoba and Saskatchewan. Professional workers are excluded in British Columbia and Ontario, employees of municipal and school corporations in Quebec, and members of family undertakings in Saskatchewan. Salesmen are excluded in Alberta, Ontario and Quebec, but in Quebec the exclusion is limited to those with less than three months' service and those who work for two or more employers at the same time.

Part-time workers employed four hours or less a day, or 24 hours or less a week, are not covered in New Brunswick. Those working three hours or less a day are excluded in Quebec, and those employed for eight hours or less a week are exempted from the Alberta legislation. In addition to the groups already mentioned, excepted are workers employed in lumbering and commercial fishing in Nova Scotia, persons engaged in funeral directing and embalming in Ontario, and apartment house janitors, caretakers provided with free lodgings and home-workers in Quebec. The large group of workers governed by decrees under the Collective Agreement Act are also outside the scope of the Quebec vacation legislation. Workers governed by a collective agreement in British Columbia are exempted from the act if the Minister of

April 30, 1971

Canada Labour (Standards) Code

Labour approves the vacation provisions of the agreement.

Under the Canada Labour (Standards) Code an employee is entitled to two weeks' vacation with pay after a year's service. In New Brunswick, Nova Scotia, Ontario and Quebec the vacation with pay to which a worker is entitled under the law is one week after a year of employment. In Alberta, British Columbia and Manitoba it is two weeks after a year of employment. The Saskatchewan act provides for an annual paid vacation of two weeks after each of the first four years of service and for three weeks after the fifth year and each year thereafter.

The period of five years of employment with the same employer necessary for an employee to qualify for three weeks' vacation may be continuous or may be made up of accumulated years provided that no break in employment exceeds six months, 182 days. The Saskatchewan act also provides that a system of cumulative vacation may be established by regulation, under which an employee may by agreement with his employer and with the approval of the minister postpone one week of his vacation each year for a period not exceeding four years.

Our Canada Labour (Standards) Code seems to be working very well, and though there have been some deferments, particularly with reference to hours of work, these deferments have been relatively few and I have every reason to believe that these problems will be equitably solved within a reasonable period of time.

In this bill the hon. member for Winnipeg North Centre has seen fit to reduce the length of service from five years to three. If he had been consistent he would have left it at five years, in which case I believe it would draw greater sympathy. We of course agree that there are minimum standards and that the federal government has a responsibility to introduce legislation to see that labour receives fair treatment at all levels, and even though the standards may not affect all the people in the country the government's responsibility is to set standards that should be followed. Provincial governments, as I have indicated, have the power to set their own standards and nearly all provinces have done so with respect to vacations with pay.

Labour naturally feels that in periods of prosperity it is the time to seek gains, to catch up with what it regards as its legitimate objectives. Being human, we should not be surprised at this. We should, rather, be grateful to the hon. member if in some cases he did not persist in unrealistic demands at times when the Canadian economy cannot afford it. The Canadian working force-that is, the average Canadian worker-is well aware of the state of the economy and workers are encouraged to seek their share of the general prosperity. I do not blame them for this.

I do not deny that it is within the authority of the federal government to legislate on labour matters, which includes regulations with respect to vacations with pay. And I am all for it, especially since we live at a time

when technological advances in all fields of human endeavour leave our people with more time for leisure and recreation; at a time when we stand at the very threshold of even greater potential that will produce more with less work and, consequently, more time to spare.

I do not deny that a prolonged vacation is desirable and useful. In fact, I admit that it is increasingly useful in view of the technological advances in industry, in manufacturing and in the offices of the nation; and the time may be near when we will be able to implement measures envisaged in this bill.

Mr. Hubert Badanai (Fori William) moved

for leave to introduce Bill C-245, respecting cancer research.