Mr. Fabien Gélinas (Associate Professor, Faculty of Law, McGill University, As an Individual):
Thank you, Madam Chair.
Good afternoon, everyone.
I would first like to thank the committee for inviting me to participate in your work in this way. It is an honour and a pleasure. Well, maybe we will see about the pleasure later.
I was not able to prepare a written report, for which I apologize, but I did bring some notes that I gave to the clerk to facilitate the work of the interpreters and, as a result, the work of committee members.
We are here to shed light on Bill C-20, An Act to provide for consultations with electors on their preferences for appointments to the Senate.
In order to prepare a sufficiently big picture for the committee, I followed the evolution of Bill S-4, which is now Bill C-19, dealing with the length of senators' terms. In so doing, I was also able to read the comments of Professor Hogg who is here with us and to whom I extend greetings.
The two bills on Senate reform remind me, in a number of respects, of the two best-known lovers in western theatre, Romeo and Juliet. We may ask ourselves whether they are really meant for each other. Are they ever going to end up together anywhere but in the great beyond? Another question comes to mind. Will the death of one, real or feigned, cause the death of the other? Questions like that arise. And everything is still possible at this stage.
So I propose to focus my introductory remarks on Bill C-20 considered separately and apart from the other bill, and to broaden my comments during the discussion if the members of the committee consider that useful.
As a constitutional lawyer, I naturally asked myself if the bill is valid constitutionally. In legal terms, the answer seems quite simple. The bill does not seem to change any provision of the Constitution within the meaning of section 52 of the Constitution Act of 1982. The constitutional amending procedure in section 38 of the act and those following does not come into play. It simply does not apply.
Nevertheless, in our political system, everyone can appreciate the limits of the legal provisions that are enshrined. It is clear that passing the bill may well have a major impact on the functioning and the balance of our political institutions. The impact will be felt by the normative, or conventional, effect of the Constitution, the conventions of the Constitution that are unwritten, and not in the law, but that nevertheless are binding.
Since we are talking about choosing senators, the problem here, in summary, comes from section 24 of the Constitution Act of 1867, which gives the Governor General the exclusive legal power to appoint senators. Section 24 makes no mention of the Prime Minister, however often it is informally said that senators are appointed by the Prime Minister.
We know that the conventions of responsible government establish that Governors General exercise most of their powers only with the advice of their ministers. The conventions stipulate that the special power described in section 24, the power to appoint senators, is exercised with the advice of the prime minister. This is one of the so-called special prerogatives.
The legal power enshrined in the Constitution belongs to the Governor General, therefore. Because of a constitutional convention, he or she exercises that power only in accordance with the advice of the prime minister. The convention exists because of the principle of responsible government, which, in the British parliamentary system, is a means of ensuring the operation of democratic principles.
The Bill under study organizes the mechanisms of an optional consultation process that might well look like an election for senators. These provisions in no way require the Governor General to appoint the senators receiving most popular support at the end of the consultations. They do not even require the Prime Minister to accept the result of the consultation when formulating his advice to the Governor General. In fact, no requirement is placed on the Governor General or even on the Prime Minister. There is therefore no impact on section 24 of the Constitution Act of 1867.
As I have already mentioned, the bill may well have a significant impact on the conventions of the Constitution. The current Prime Minister is almost obliged, politically, to be bound by the results of the consultation. If he so declares himself, either before or after the legislation is passed, and if he then moves to make appointments as a result, he is demonstrably laying the foundation for a constitutional convention. This would be confirmed, in my view, only if his successor saw fit to be bound by the same rules.
The requirements for a convention to be established are generally considered to be precedents, a feeling of obligation on the part of the political actor involved, and a reason for the rule. What I would like to highlight here is this reason for the constitutional norm that is the subject of our attention.
There is a reason for the conventional rule that transfers the Governor General's power in section 24 of the Constitution Act of 1867 to the Prime Minister, and the reason is the democratic principle. The conventional rule apparently sought here, to transfer the power of elected people—the power accorded to the Prime Minister acting with the confidence of the House of Commons—to voters, that is, the people who would be consulted, is the democratic principle too. The concept of democracy is also described in the first paragraph of the preamble to the bill. These are two different concepts—that is what I want to underline here—or at least two very different ways to put the democratic principle into operation. The first takes the familiar and well-paved road of responsible government in the House of Commons. The other cuts a largely uncharted path through our political system.
The Supreme Court has already had the opportunity to study the protection provided by constitutional law to the rules of responsible government. The principle of responsible government is definitely, but somewhat uncertainly, enshrined in the Constitution and protected from unilateral change by Parliament, or by a provincial legislature in the case of an amendment to a provincial constitution. This protection is guaranteed, both federally and provincially, by section 41 of the Constitution Act of 1982 that, as you know, requires unanimous consent to amend the offices of Governor General and Lieutenant Governors. This is a way to protect the principle of responsible government under the Constitution. In the case of the Senate, this protection is guaranteed in section 42 of the procedure for amending the constitution, which protects section 24 of the Constitution Act of 1867 from unilateral amendment.
This leads me to suggest that, if the bill went any further in limiting the Governor General's decision-making under section 24, it would move into an area of constitutional uncertainty.
But, in my view, this is not the case here. If we consider the bill in isolation and in its current form, I believe that no fault can be found with its constitutional validity.
Politically, however, I would say to sum up that the idea that lies beneath the intended reform deserves serious attention. Although it claims to uphold the democratic principle, it introduces a foreign element into our system whose consequences do not seem, to me at least, to be sufficiently clear.
Professor Peter Hogg (Scholar in Residence, Blake, Cassels and Graydon LLP, As an Individual):
Thank you very much, Madam Chair, and thank you, Professor Gélinas.
My view is not very different from that of Professor Gélinas, and I will attempt to speak to the particular point that he made before I finish, but let me set out my argument, which is pretty straightforward.
I say that Bill C-20 would be a valid act of Parliament, and it escapes the strictures of paragraph 42(1)(b), the fact that it requires an amendment to change the method of selecting senators. It avoids that because it does not literally amend section 24 of the Constitution Act, 1867.
It could be argued—and Professor Gélinas did not argue this—that Bill C-20 is, in pith and substance, really an amendment to the method of selecting senators and is therefore unconstitutional under paragraph 42(1)(b). My view is that the Supreme Court of Canada would not accept that argument, and I say that because the appointing power of section 24, which only speaks to the Governor General, does not now impose any restrictions on the consultations or considerations that the Prime Minister might take into account before recommending an appointment to the Governor General.
For example, right now the Prime Minister could, if he wished, commission an informal poll as to the wishes of the electorate with respect to an appointment from a particular province. The Prime Minister could right now, and in fact has done, respect the choice of the electorate expressed in a provincial election, as we know has been done in respect of appointments from Alberta, where those elections have been held.
So all Bill C-20 does is make a formal consultation process available to the Prime Minister, should he choose to take advantage of it. As you will know, the Prime Minister does not need to take advantage of the consultation process if he doesn't want to; the bill leaves that as a matter of discretion in the Governor in Council. If the Prime Minister does order the formal consultation process to take place, he does not have to respect the results in making recommendations for appointments.
I fully recognize—and this starts to get me into the area where Professor Gélinas is—and obviously a court would recognize that after Parliament has established the complicated process proposed by Bill C-20, no Prime Minister is likely to continue to make appointments in the old way. But I say that is a truth of politics, not a truth of law. It might be different if Bill C-20 compelled the Prime Minister to follow the statutory consultation process and then compelled him to make appointment recommendations in accordance with the outcome of the process, but as we know, Bill C-20 doesn't do either of those things. Bill C-20 simply gives the Prime Minister a vehicle for consulting the electorate, but does not require him to use it and does not require him to respect the outcome if he does use it.
Getting to the corner of Professor Gélinas' point, section 24 has never attempted to control the decision-making process that precedes the decision of the Governor General to make Senate appointments. So if it did turn out that prime ministers now automatically use the process, and if it came to be accepted, as Professor Gélinas suggests might be a possibility, that this was really a convention, that this ripened into a new convention that appointments would always be made by using this admittedly optional process, section 24 would not speak to that. Section 24 says nothing about the conventions that precede an appointment, and conventions can change in various ways over the years. If this ended up causing a change in the convention, section 24 would simply operate in the way it has always done. That is to say, whoever by convention is supposed to make the recommendations of the Governor General, the Governor General would then go ahead and make the appointment.
Let me raise one other point that I know has been at least mentioned in the proceedings before the committee. The point is this. In the upper house reference, the decision of the Supreme Court of Canada in 1980, the Supreme Court said that the fundamental features or essential characteristics of the Senate were outside the unilateral power of Parliament.
I know it has been suggested, and now is still the case, that any bill--this was suggested, for example, with respect to the term limit bill--that arguably altered the fundamental features or essential characteristics of the Senate would be outside Parliament's power. I just want to briefly answer that point, because I'm sure it will be part of your deliberations.
That upper house re-decision was a decision in 1980, before the Constitution Act 1982. It was the answer to a series of questions that were put to the Supreme Court of Canada by the government of the day about the extent of Parliament's power to change the Senate, including to make provision for elections to the Senate. The court gave very general answers to those questions--it wasn't asked anything very specific, and it didn't have a bill placed before it. The court's answers were particularly concerned with the protection of the provisions respecting regional and provincial representation in the Senate. Of course, Bill C-20 doesn't touch those.
The important point is that that case is no longer relevant. When it was decided in 1980, the Constitution Act 1867, which was the only authority then for making changes to the Senate, said nothing about Parliament's power to enact changes to the Senate. So the court was constructing some general rules in the face of a Constitution that said nothing. Of course, that has now been overtaken by the Constitution Act 1982, which now specifies expressly what has been withdrawn from the unilateral power of Parliament. One of those matters, of course, as we have seen, is “the method of selecting senators”. Another is “the powers of the Senate”. Another is “the number of members by which a province is entitled to be represented in the Senate”. Another is the “residence qualifications of senators”. They're all set out in section 42, the 7/50 provision in the amending powers.
Those explicit provisions are now the governing constitutional law with respect to changes to the Senate. I say the only one that is potentially relevant is the method of selecting senators, and I've explained my view that that provision does not cover Bill C-20.
My conclusion is that the Parliament of Canada does have the power to enact Bill C-20, and if it were enacted, it would be a valid act of Parliament.
Thank you, Madam Chair.
Mr. Brian Murphy (Moncton—Riverview—Dieppe, Lib.):
Thank you, Madam Chair.
Thank you, witnesses, for attending.
I want to get into some broad-ranging questions about two competing elected houses and the international experience, in a few seconds. But I want to give
the opportunity for Professor Gélinas to respond to Professor Hogg's contention that, if a constitutional convention became established after two or three prime ministers had chosen to endorse the choice of the electors, section 24 of the act would not be affected at all.
To be clearer in English, for me, Professor Hogg has suggested—and I don't think you quite got there in your submission—that if, after time, having put the voters to their choice and having put Elections Canada and taxpayers to the expense of a selection process, a Prime Minister elected to choose the candidates who were chosen, and if after a number of terms, let's say, or one term, that became a convention, Professor Hogg, I think, was saying that this would have no effect on who ultimately selects senators and therefore would, in itself, be fine.
Do you agree with that?
Mr. Brian Murphy:
That's very clear. Thank you for that.
Now, on the broader question, it seems that on the black letter aspect of this legislation there's nothing that you feel impugns the Constitution. That's fine. But the political effect of it is that the selection process will be followed, in all likelihood, by prime ministers, and therefore it changes directly the method by which senators are elected or selected.
Therefore we can envision in a very short time two democratically elected houses. I tread very carefully in talking about Australasia and New Zealand and Australia. But in New Zealand, I believe, that never came to pass, because they rejected the elected aspect. In Australia there are specific powers between the two houses, as there are in the United States under the presidential aspect of veto.
There is a very short time, but how do you envisage this working in our current environment with, effectively, an elected Senate and an elected House of Commons with respect to gridlock and stalemate? I'll give you each an occasion to answer that, if we have time.
Mr. Pierre Paquette:
We really get the impression that, faced with repeated failures to reform the Senate, the Conservative government, who have made this their kind of trademark, has come up with a bill that addresses the main pitfall, the constitutional amendment process that Senate reform would normally entail. So, the bill has been written so that the sections that you mentioned, section 24, for example, are not affected, though the political intention is still to have an elected Senate. That has come up on several occasions.
For example, to hold public consultations under Bill C-20, it would cost $150 million, according to the Chief Electoral Officer, or about half the cost of a general election. I cannot see how the Prime Minister, who proposed this reform, would not take the results of the public consultation into account. They are doing indirectly what they cannot do directly. That is, getting themselves a list of candidates who have been indirectly elected. If you combine Bill C-19, which limits terms to eight years, and Bill C-20, which establishes public consultations, you have Senate reform, that is for sure.
In my opinion, what we are looking at is a complete reform of the nature of the Senate as conceived by the founders of Canada.
Let me ask you for your opinion. Is it not your impression that Bills C-19 and C-20 are going to let the government and Parliament, if they are passed, do indirectly what the Constitution prevents them from doing directly?
Hon. Hedy Fry (Vancouver Centre, Lib.):
I've practised what I'm going to say about the fact that I am certainly not a lawyer. I have heard Mr. Hogg, Professor Gélinas, and the Canadian Bar Association give three very different opinions on this issue. I suppose It's interesting to see how one can split the law the way one can split a hair.
I'm not going to go into the splitting of that, because I'm not lawyer and therefore I can't debate that. However, I like to look at outcomes; this is what I'm good at as a physician. For me, the outcome of this piece of legislation is going to be very important, and if the outcome fundamentally changes the way our parliaments work, then one has to be concerned about what that outcome is going to be. Whether one can get around it by saying that the Prime Minister doesn't have to abide by the results of those elections.... That's one way of getting around the constitutionality, but is it a valid and ethical way to get around the constitutionality if the outcome is going to affect Canadians?
Secondly, if one takes something to the people and asks the people to vote, would the people—who are an institution, if you want to look at them as such—or will civil society believe that by voting they are automatically doing the democratic thing and that the vote should and must be taken into consideration or must be a mandatory thing?
Having said both of those things, because obviously the outcome here is to democratize the system—and no one is against that, we are all in favour of it—and given what the Supreme Court had to say about changing the fundamental way we elect senators.... That's the outcome at the end of the day; whether constitutionally you can get around it or not, that's going to be fundamentally changed. The way the Senate and the House of Commons work is going to be fundamentally changed.
I wonder first about the ethics of it, because that's the outcome—what is the ethical outcome you're looking for?—second, whether it is democratic; and third, given how the people voted on the Charlottetown accord, whether the people want us to do this. I would like to suggest that there's a different process, a more democratic and a more meaningful process of getting this done. One of the ways, as the bar association suggested, would be to go to the Supreme Court with the question.
Could you give me some answers about the ethics of it, the democracy component of it, and obviously whether the Supreme Court should speak to this issue or not?
Prof. Fabien Gélinas:
Your question presupposes that it's going to change the system. It's a step toward changing the system, that's for sure, but I don't think we can take for granted that the system will be changed.
It could very well be a matter of being a flash in the pan here. The next Prime Minister might refuse to hold consultations for the appointment of senators. The next Prime Minister, or even this Prime Minister, might have a constitutional agenda that will be put on the table and might negotiate things with the provinces that will change everything fundamentally.
This is all politics, and it doesn't really affect the answer to a legal question. The legal question, of course, is not cut and dried. It is not always as clear as one might expect it to be. There is no question that political principles have an influence on decisions in hard cases, and this could eventually be a hard case if both statutes go forward. I am not saying that it's not difficult.
The question of ethics would be answered by the electorate. If a Prime Minister holds consultations and, for no obvious reason, decides not to follow the result, then there'll be an outcry, there'll be outrage, and there'll be political sanctions. That is my answer.
Hon. Michael Chong (Wellington—Halton Hills, CPC):
Thank you, Chair.
My question concerns Bill C-20 in light of the upper house reference of 1980, and specifically some of the provincial concerns that have been raised here and previously about these pieces of legislation. I'd like both of you to respond to these concerns and give us your opinion on them.
The Province of Quebec has traditionally demanded that the National Assembly play a role in the selection of senators to the Senate of Canada, and has also raised issues about the constitutionality of Bill C-20 in the Senate committee hearing. At that committee hearing, Mr. Pelletier noted that in his view the federal bills on Senate reform represent not limited change but fundamental change to the nature of the Senate.
So in that context, and in the context of the upper house reference of 1980, which stated that the Government of Canada could not unilaterally alter or change the fundamental features, or central characteristics, of the Senate with respect to its regional representation and its other essential features, do you agree or disagree with Mr. Pelletier's view on this, or do you share some of his views and not others?
Maybe you could tell us what your views are of this.
Mr. Rob Moore (Fundy Royal, CPC):
Thank you, Madam Chair.
Thank you to the witnesses. I apologize for having to step out for a bit, and I also apologize if my question covers some of the ground that you've already covered.
Mr. Hogg, I look at your conclusion in your brief that you submitted to the committee: that if the act were challenged in court on constitutional grounds, the challenge would be unsuccessful, and that the Parliament of Canada does indeed have the power to enact Bill C-20, and if it were enacted, it would be a valid act of Parliament. Obviously I agree with that.
I'm looking at the first page, your last paragraph, and you didn't go over that in your opening remarks. So I just wanted a bit of a review.
It says that the bill stops with the counting of votes and the report to the Prime Minister. It does not go on to declare that the successful nominees are elected; nor does it say that they will be appointed. The bill does not impose any duties of any kind on the Prime Minister or the Governor General. And it says that obviously the bill assumes that the Prime Minister would be under a political imperative to respect the outcomes of the consultation that he has ordered, but this is not a legal imperative.
Can you explain how you reached that conclusion, but also explain why that is important for the constitutional validity of the bill?
Mr. Charlie Angus:
I'm glad you brought up the role of the Supreme Court, because it certainly has changed very much in terms of interpreting our national law.
I'm trying to find out how we, in this day and age, manage to maintain a relic like the Senate, which seems to be often appointed on a partisan basis. There have been some excellent candidates and there have been some pretty sketchy people in there as well.
An hon. member: [Inaudible]
Mr. Charlie Angus: Yes, but the difference is that in the House of Commons we have to go back to the people, and they decide whether or not we should be in the House. I know some of my Liberal friends certainly think that party bagmen can stay in there till the age of 75, that it's a perfectly legitimate dumping ground. I personally don't agree.
One of the arguments is that they play an important role in protecting regional interests. I have a senator from my region, the great Senator Frank Mahovlich. I say “great”; he was a great hockey player, number 27. He came from Schumacher--the same town, by the way, as the industry minister, Jim Prentice, comes from. I have nothing against Frank Mahovlich, but the only time I ever see him in my riding is during elections to try to have me defeated. That seems to be a regional role he plays, to come up and promote the Liberal flag.
I'm asking all this because I don't see anything in this bill that would set out how we would ensure that regional interests are guaranteed. In Ontario, for example, if we have five candidates picked, they could come from anywhere. There's nothing to say that they are going to be aboriginal or they're going to come from the north, or one from the city and one from the rural southwest.
How can we be assured that this Senate will actually represent its so-called regional interests if it's done on a very ad hoc, hit-and-miss basis?
Mr. Gary Goodyear (Cambridge, CPC):
Thank you, Chair.
Through you, Chair, thank you to our guests for coming. I've enjoyed the discussions we've had on this bill.
I have a comment and then a question.
I've had the opportunity to travel with the parliamentary Commonwealth group, which has given me a great opportunity to meet some of the smaller countries in the Commonwealth: Barbados, the Turks and Caicos, and so on. What I noticed there was that we have countries that are run, frankly, by small numbers of members of Parliament—15, and in some cases 8 or 11. As good a job as they do, it became clear to me that to have a second upper chamber, an area of second thought to go over some of the decisions made by the members, was probably a good idea. But when we have a Parliament as large as ours, with 308 members, with all the facilities offered to us—the researchers, the analysts, witnesses, the funds to bring in experts like you—I remain unconvinced that we need a Senate to continue.
As you had mentioned, institutions tend to change in time, and perhaps it's time. That's a decision we are wrestling with and will continue to wrestle with, but it's a point that I make.
The question I have here is that as I read through Bill C-20, I understand the issues with constitutionality, but I'm gathering from you, for the most part, that at the end of the day this is not in direct violation of the Constitution. Would you say that this is a significant move in democracy, in a democratic way, toward a Senate that reflects better the nation and the needs of the nation, the opinions of Canadians, and a move toward reforming the Senate in a democratic way that does not violate the Constitution? Would you agree with that statement?