Bill C-19 (Historical)

Constitution Act, 2007 (Senate tenure)

An Act to amend the Constitution Act, 1867 (Senate tenure)

This enactment changes the tenure of members of the Senate.

[Pierre Paquette, Bloc, Joliette, QC]

If there is to be any Senate reform, the provinces and Quebec must be consulted. Regardless of the changes made, I am convinced that for Quebec, it is an issue of some kind of counterbalance to its presence in the House of Commons.

Earlier on, I read what Mr. Harper was saying about the idea of turning the Senate into a House of the provinces. We clearly sense that the Harper government—and this was also the case with Mr. Van Loan when he came to testify—considers that Bills C-19 and C-20 are a take-it-or-leave-it proposition, in the sense that if they are not passed, they will work to abolish the Senate.

Do you believe that that kind of statement, which in my opinion is almost blackmail, holds water? Should we really be concerned that the federal government, the Conservative Party, could decide unilaterally to abolish the Senate? Is this a credible threat? This would forcibly result in a new round of constitutional negotiations.

[Benoît Pelletier, Minister, Canadian Intergovernmental Affairs, Government of Québec]

Thank you, Madam Chair.

Ladies and gentlemen, members of the committee, I will first of all introduce you to the person accompanying me, Mr. Jean-Guy Côté, who is the political attaché in my Quebec City office.

I will begin by thanking you for your invitation to take part in the work of your committee in its deliberations on Bill C-20. I will repeat what I said in 2007 when I stood before a senatorial committee—the Government of Quebec does not usually appear before a federal parliamentary forum unless exceptional circumstances warrant it, as is the case today. This is the third time Quebec has come before the Parliament of Canada to express its opinion on the measures put forward by the federal government to reform the Senate.

Quebec presented its viewpoint at a sitting of the Special Senate Committee on Senate Reform in the autumn of 2006, and in a brief submitted in May 2007 to the Standing Senate Committee on Legal and Constitutional Affairs. Quebec's positions are thus well known. We demanded the withdrawal of Bill C-43, today's Bill C-20, by which the federal government would introduce an electoral system applicable to the selection of senators. We also demanded the suspension of proceedings on Bill S-4, now Bill C-19, concerning the tenure of senators. These two measures are presented separately but are indeed components of a single initiative.

For the Government of Quebec, however, transformation of the fundamental features of the Senate is not a matter of ordinary statutes. It is a fully constitutional issue that therefore begs recourse to multilateral procedures of constitutional amendment.

It is perfectly clear to Quebec that the federal government's underlying intention in these bills is to do indirectly what it cannot do directly, namely, to transform the method of selecting senators and, by extension, transform the nature and role of the Senate which, since 1867, has been an appointing chamber of legislative sober second thought.

It seems equally clear to us that the system envisaged in Bill C-20 is electoral in purpose and effect. We have noted that, during the committee's works, it has been pointed out that Bill C-20 had been "carefully drafted" to comply with the Constitution. But the Constitution is more than form. It is more than drafting techniques. It goes to the very heart and nature of things and to the very purpose of rules that govern our society.

Constitutional jurisprudence was quick to emphasize the importance of going beyond form and appearance in assessing the constitutionality of power-sharing measures. The formalist approach was rejected. The courts had the wisdom to recognize that subtle wording can sometimes be tantamount to concealment. They made the pith and substance of the rules of law the centrepiece of constitutional logic.

As I see it, this legal tradition applies just as aptly to the limits of unilateral federal jurisdiction in institutional matters in relation to the multilateral procedures of constitutional amendments. What counts are the purpose, subject and effect of this bill, and not the care taken in drafting it or the ingenuity of the notions involved, such as consultative election as a means of appointment, a notion that appears to have no precedent.

The Government of Quebec maintains that the purpose of Bill C-20 is, beyond a doubt, to transform the method of selecting senators. This is the clear intent of the federal government. The system considered in the bill is not workable or viable unless it is electoral. Otherwise, how does one ask citizens to stand as candidates and campaign throughout the province, with the personal and financial commitments that candidacy entails? How does one justify the involvement of Elections Canada and the use of public resources for a complex voting process that must comply with all the requirements of an electoral system, and ask citizens to exercise their right to vote and to cast a ballot? What is there to prevent candidates from considering themselves and from being considered as elected directly by the population, taking into account the recourse to universal suffrage?

The notion of consultation, therefore, strikes us as artificial. If, after such a process, there is a pool of candidates, as certain federal representatives have put it, that would be a pool of elected persons and this does not change the fundamental impact of the bill on the nature of the Senate. Even if the seats for which these persons have been elected are not all available immediately, these persons would have been chosen by voters through universal suffrage. The idea of a pool does not mitigate the consequences of the institutional change that is sought through this bill.

In my previous interventions, I touched on the link between sections 42 and 43 of the Constitution Act, 1982 and the Supreme Court's 1979 Reference on the Upper House. Further to this opinion that gave rise to the principle of the exclusion of the fundamental features, or essential characteristics, of the Senate from unilateral federal jurisdiction, the framers of the Constitution expressly specified certain exceptions to the federal jurisdiction under today's section 44, including the method of selecting senators, the powers of the Senate, and regional representation, incidentally, three closely interconnected elements in terms of institutional balance and architecture.

With the framework of current debates on the federal bills, some have questioned the contemporary relevance of the Reference on the Upper House. We reiterate that this Supreme Court opinion is just as relevant now as it was then. Constitutional protection of the fundamental features of the Senate is enshrined in the Constitution through the exceptions laid out in section 42 and, in addition to these exceptions, through the required use of the 7/50 general procedure under section 38 of the Constitution Act, 1982.

The federal compromise at the basis of Canada's political system is expressed in the fundamental features of the federal institutions created in 1867. In its original mandate, by virtue of the regional distribution of senatorial seats, the Senate was designed to be a forum for representing the interests of the components of the federation within federal institutions.

For Quebec, those interests take on special meaning in relation to its national identity. Bill C-20 also raises concerns about the francophone presence in the Senate and the role of this chamber regarding the Canadian duality, a point emphasized in the brief presented to this committee by the Fédération des communautés francophones et acadienne du Canada. The Government of Quebec agrees with this position.

The Senate also fulfils the role of providing sober second thought with regard to the legislation submitted by the House of Commons. This role is reflected in the powers of the Senate, which has to approve every piece of federal legislation. As we know, the manner in which the Senate exercises these prerogatives is largely inflected by the fact that it is an appointment chamber.

Bill C-20 would very likely encourage the Senate to make concrete use of the many powers still available to it, even though there are no mechanisms for resolving a potential deadlock between the two chambers. We were taken aback by the argument that Bill C-20's drawbacks are seen by some as a means, in some ways positive, of destabilizing the status quo, of triggering change. We do not think it is possible to embark upon such fundamental constitutional change in this way, without taking into account the complex connections between the various fundamental features of the institutions concerned.

The Senate exists in a complex and coherent constitutional environment that is tied to considerations underlying the federal compact and the balance of intergovernmental relations. The federal government's current bills are not mere experiments or pilot projects. Were they to be implemented, they could lead to sweeping political changes which we cannot safely assume would be easily adjusted or rectified should the need to do so arise, especially if there were to be unexpected consequences.

What we can foresee, however, are possible impacts of an elected Senate on the balance of intergovernmental relations, without improvement in the defence of provincial interests by the Upper Chamber. The new senators would in all likelihood be less effective in representing provincial interests, for they would tend to integrate with the political dynamic proper to the federal scene, in particular, the dynamic of the federal political parties, even if certain variations on the Australian model, the template for the federal government, have been written into to Bill C-20. Here the comparison is with the Australian Senate, an institution in which partisan polarization is particularly prevalent.

What we should be examining is the impact of the electoral system advocated by the federal government on the basic constitutional mission of the Canadian Senate. When the issue is viewed from this angle, it seems obvious that partisanship within the Upper Chamber would intensify.

The provinces have a direct interest in the unilateral changes the federal government proposes to make to the Senate. The argument to the effect that the process of constitutional amendment is too demanding has no place in a federal system in which constitutionalism and the rule of law are recognized as basic principles. It is an untenable argument in a federal system in which the purpose of more complex procedures for constitutional amendment is to ensure that minority interests are taken into account when fundamental constitutional elements are at issue. Consideration of minority interests is of particular importance for the Quebec nation, given its situation within Canada.

The future of the Senate, and changes to its fundamental features, cannot be envisaged outside of the constitutional context to which it belongs, one of constitutional changes in which the provinces are called upon to share the exercise of constituent authority.

It is odd indeed that we have to engage in a procedural debate on a subject as patently constitutional as the nature and role of the Senate and that we are here to demand that the provinces be part of the process.

The provinces must be participants in reforms pertaining to the fundamental features of federal institutions. Quebec is not averse to the idea of modernizing the Senate. It is aware that its federative partners have certain aspirations in this regard. Naturally, it is interested in the question of the role of the Senate within the federal system, and, notably, that of closer relations between the provinces and the Upper House. But a single Parliament cannot monopolize this undertaking of institutional modernization.

In concluding, allow us to reiterate before this committee the message expressed unanimously by the National Assembly of Quebec in its May 16, 2007 resolution. Bill C-20, which the federal government is attempting to present as a minor amendment over which the federal Parliament would have exclusive jurisdiction, in fact masks an in-depth change in the nature and role of the Senate. Under no pretext whatsoever does such a reform lend itself to unilateral action by the federal government. The provinces, and Quebec in particular, cannot be excluded from fundamental debates concerning the evolution of the Canadian federation.

Thank you.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, in keeping with our theme for this week, which is strengthening democracy and human rights, today we will continue to debate Bill C-47, which is a bill to provide basic rights to on reserve individuals to protect them and their children in the event of a relationship breakdown, which are rights that Canadians off reserve enjoy every day.

We will debate our bill to give effect to the Tsawwassen First Nation Final Agreement, Bill C-34, and Bill C-21, which would extend the protection of the Canadian Human Rights Act to aboriginals living on reserve.

We will also debate Bill C-29, which is our bill to close the loophole that was used most recently by Liberal leadership candidates to bypass the personal contribution limit provisions of the election financing laws with large personal loans from wealthy, powerful individuals, and Bill C-19, which is our bill to limit the terms of senators to eight years from the current maximum of 45.

Next week will be honouring our monarch week. Members of Parliament will return to their ridings to join constituents in celebrating Queen Victoria, our sovereign with whom Sir John A. Macdonald worked in establishing Confederation, and honouring our contemporary head of state, Her Majesty Queen Elizabeth II.

The week the House returns will be sound economic management without a carbon tax week. The highlight of the week will be the return of the budget bill to this House on May 28.

This bill proposes a balanced budget, controlled spending, investments in priority areas and lower taxes, all without forcing Canadian families to pay a tax on carbon, gas and heating. Furthermore, the budget implementation bill proposes much needed changes to the immigration system. These measures will help us ensure the competitiveness of our economy. I would like to assure this House that we are determined to see this bill pass before the House rises for the summer.

We will start the week by debating, at third reading, Bill C-33, our biofuels bill to require that by 2010 5% of gasoline and by 2012 2% of diesel and home heating oil will be comprised of renewable fuels, with our hope that there will be no carbon tax on them.

We will debate Bill C-55, our bill to implement the free trade agreement with the states of the European Free Trade Association.

This free trade agreement, the first in six years, reflects our desire to find new markets for Canadian products and services.

We will also debate Bill C-5 dealing with nuclear liability issues for our energy sector; Bill C-7 to modernize our aeronautics sector; Bill C-43 to modernize our customs rules; Bill C-39 to modernize the Canada Grain Act for farmers; Bill C-46 to give farmers more choice in marketing grain; Bill C-14, which allows enterprises choice for communicating with their customers through the mail; and Bill C-32 to modernize our fisheries sector.

The opposition House leader raises the question of two evenings being set aside for committee of the whole. He is quite right. Those two evenings will have to be set aside sometime between now and May 31.

With regard to the notes that were quoted from by the Prime Minister and the Parliamentary Secretary to the Minister of Foreign Affairs, they were their notes and referred of course to announcements that clearly have been made about the need and the imperative of restoring our military's equipment and needs in the way in which the Canadian government is doing so.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, the government took a major step forward this week to maintain a competitive economy, our theme for this week, and I am happy to advise the House that yesterday the Standing Committee on Finance agreed to report the budget implementation bill back to the House by May 28.

This is excellent news. The budget bill ensures a balanced budget, controls spending, and invests in priority areas.

This week also saw the passage of Bill C-23, which amends the Canada Marine Act, and Bill C-5 on nuclear liability at report stage.

Today, we are debating a confidence motion on the government’s handling of the economy. We fully expect, notwithstanding the minority status of our government, that this House of Commons will, once again, express its support for the government’s sound management of Canada’s finances and the economy.

Tomorrow, will we continue with maintaining a competitive economy week by debating our bill to implement our free trade agreement with the countries of the European Free Trade Association. It is the first free trade agreement signed in six years and represents our commitment to finding new markets for the goods and services Canadians produce.

If there is time, we will also debate Bill C-14, which would allow enterprises choice for communicating with customers; Bill C-7, to modernize our aeronautics sector; Bill C-32, to modernize our fisheries sector; Bill C-43, to modernize our custom rules; Bill C-39, to modernize the Grain Act for farmers; and Bill C-46, to give farmers more choice in marketing grain.

The government believes strongly in the principle of democracy and the fundamental importance of human rights. Next week we will show our support for that with strengthening democracy and human rights week. The week will start with debate on Bill C-30, our specific land claims bill. The bill would create an independent tribunal made up of superior court judges to help resolve the specific claims of first nations and will, hopefully, speed up the resolution about standing claims.

We will debate Bill C-34, which is our bill to give effect to the Tsawwassen First Nation final agreement. We will debate our bill to provide basic rights to on reserve individuals, Bill C-47, to protect them and their children in the event of a relationship breakdown, rights that off reserve Canadians enjoy every day.

As I said, we are committed to strengthening democracy in Canada. Yesterday, I had an excellent discussion on Senate reform with members of the Senate legal and constitutional affairs committee. That discussion will continue in this House next week when we debate our bill to limit the terms of senators to eight years from the current maximum of 45, as foreseen in Bill C-19.

We will also debate our bill to close the loophole used by leadership candidates to bypass the personal contribution limit provisions of the election financing laws with large, personal loans from wealthy powerful individuals and ensure we eliminate the influence of big money in the political process.

With regard to the question about estimates, there are, as the opposition House leader knows, two evenings that must be scheduled for committee of the whole in the House to deal with those estimates. Those days will be scheduled over the next two weeks that we sit so they may be completed before May 31, as contemplated in the Standing Orders.

There have been consultations, Mr. Speaker, and I believe you would find the unanimous consent of the House for the following:

That, notwithstanding any Standing Order or usual practices of the House, on Friday, May 9, starting at noon and ending at the normal hour of daily adjournment, no quorum calls, dilatory motions or requests for unanimous consent shall be received by the Chair.

[Prof. Richard Simeon]

Well, I think in my initial presentation I did make a suggestion. The suggestion would be to try to fix some of the weaknesses in the current bill. Most of the weaknesses have to do with the fact that it's not clear whether this is or is not finally an elected Senate, because the Prime Minister retains the discretion--we don't know how he'll use it--to decide whether or not there will be a Senate election, whether to accept the results, whether it will be in some provinces but not in others. That seems to me to be far too much uncertainty in the bill.

The other big recommendation I made was that the election not be held coincident with a federal election or a provincial election, but on a separate day.

What I would like the committee to do is strengthen the bill, tighten it, clarify it, so it becomes more clearly an elected-Senate bill.

But then, we understand that gets close, and maybe over the line, to doing something that Parliament does not have the constitutional authority to do. There is not a consensus on that question. Lawyers like Peter Hogg and Pat Monahan and Fabien Gélinas have said that this bill is okay. But even they worry that once you add Bill C-19 to it and tighten it up, then it might cross the line.

What I would like to see the committee do is craft the best bill they can, then submit it to a Supreme Court reference. That will test the waters and test whether and how the federal Parliament on its own can try to improve the Senate. If the Supreme Court says, “No, you've crossed the line”, then we have to go the constitutional route.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair.

Thank you, gentlemen, for having given us your expertise and for having travelled here to do so. Thank you also, Mr. Simeon, for making yourself available.

I have several questions, all of equal weight. Parliament should sit in your class for a week to get a clear idea of the factors involved in passing the bill as it is presented.

Among other things, the House of Commons is being compared to the upper house, or the Senate. The Senate is called the upper house precisely because, I believe, in the spirit of the conventions and the law...

Might the Supreme Court be tempted to consider the spirit of the conventions if it were to decide on the legitimacy of a bill like this?

If we compare Bill C-20 to Bill C-19, which has also been brought forward, do we not automatically have to open the Constitution? But there is one major change. To my knowledge, no negotiations have taken place with the provinces. We are moving towards an upper house with powers not greater than but equal to the powers of the House of Commons. At the same time, we are exposing senators to the pressures of civil society, the same pressures that members of Parliament are under today. In that context, the quality of decision-making in the Senate... Doubts start to creep in. Mr. Simeon and Mr. Heard spoke about that too.

I would like to hear your comments.

[Prof. Andrew Heard]

There are a number of quite complicated issues mixed up in your questions there. Excuse me if I just focus on a couple of them, perhaps.

There's the issue of why the bill doesn't deal specifically with the Prime Minister's role and discretion in recommending nominees. I think the Prime Minister is left out of this bill because the Prime Minister is not mentioned in law with respect to Senate appointments to begin with. In order to keep this bill arguably constitutional, the less said about the Prime Minister the better. From a drafting point of view, I would suspect that's why the Prime Minister is not mentioned and why there is no discussion about the Prime Minister's requirement, or not, to recommend nominees who haven't been elected.

In the second set of questions, you asked about the role of representation of a senator with respect to his or her province and how that differs from one province to another. You mentioned the specific and particular role of representation that Quebec senators have because they represent one of 24 specific districts within the province. That particularity poses great difficulties for the drafting of this bill, on the one hand, and also questions about how this bill has come to be proposed and this change suggested without the agreement of the provincial government, particularly your interest, the Province of Quebec.

I've been trying to think how to draft a change to this bill that would accommodate the specific district representation of Quebec senators. I'm not sure how it can be done. The simplest would be to change the section of the bill that talks about the qualification for being a candidate, just to say that candidates should be qualified under section 26 of the Constitution Act, 1867, and then just say that if you're qualified under that, you're qualified under this.

But that doesn't get over the particular problem of districting in Quebec, because one could be qualified to represent one district in Quebec but that may not be the district in which a vacancy can appear. However, it may be a practical solution, because my understanding is that appointments to the Senate from Quebec often involve senators purchasing property in a district they have had no specific tie to beforehand. So it may be sufficient to say that you are qualified under section 26 as it is now, you're qualified to represent one district, but if you're appointed to represent another district and you hurry off and buy some real estate in that district, you're qualified.

So I think from a technical point of view, an amendment is in fact needed to ensure that candidates in the Senate elections are qualified to sit in the Senate. Right now, you can run in this election and not be qualified to sit in the Senate. In making those changes, we can correct that particular problem for Quebec.

The final political issue is that this change is being suggested and proposed without the agreement of the Province of Quebec. In fact, the Province of Quebec has stated quite clearly that they are opposed to this bill, and Bill C-19 as well.

I think that is wrong constitutionally. I think an agreement was made in 1982 that didn't include the Quebec government at the time, but the rest of the provincial governments agreed that if substantive changes were made to the Senate, they should be done with the agreement of provincial governments. So this is one reason I believe the government is proceeding with the wrong process to achieve what may otherwise be an admirable goal.

[Charles-Emmanuel Côté]

If a decision were made to follow the recommendation made by the Canadian Bar Association, the main question would have to deal specifically with the constitutionality of Bills C-19 and C-20. If the questions were to be too abstract, there would be a risk that the Supreme Court might decide not to make a ruling. That is exactly what happened in the 1980 reference, when the Supreme Court refused to reply to a series of questions that it considered too abstract, and for which some factual evidence seemed to be lacking. In my opinion, the reference should deal more specifically with these specific bills.

[John Whyte]

It makes sense, of course, to reform the Senate all at once and not to be electing people for life or fifteen years or eight years--we don't really know what. It doesn't make sense to be limiting terms to fifteen years or eight years when we don't know how they'd be chosen. It's no way to design a national legislature, to throw up a sort of jump-ball reform and see what shakes out. People play basketball that way, but they don't design nations that way. Of course they should be worked out together.

On Bill S-4 and Bill C-19, again, Professor Hogg and I disagree. He thought there was no constitutional problem and that it perfectly fell within section 44 of the unilateral federal amending power. I thought that it didn't.

My analysis on the constitutional validity, which I did give to the Senate, is that it's more tenuous. It's a harder question.

Very briefly, let me say that I think the structure, the composition, the term, and the qualification of the Senate are part of the essential federal arrangement, the federal accommodation. The Senate is part of our historic federal accommodation, and you can't just make a long list of changes that don't fall within paragraphs 42(1)(b) and 42(1)(c) and say that everything is open to unilateral federal amendment. That's not Confederation.

[John Maloney, Liberal, Welland, ON]

I have a question.

We are considering Bill C-20 and we also have term limits in Bill C-19. Can we consider these bills separate unto themselves, or do we have to consider them in light of each other?

[Prof. Errol Mendes, Professor, Constitutional and International Law, University of Ottawa, As an Individual]

Thank you, Madam Chair.

I am going to present my ideas in English, however I would be glad to entertain your comments and respond to your questions in French. Thank you.

I suggest that Bill C-20, entitled the Senate Appointment Consultations Act, is giving a false impression to the regions of Canada, especially western Canada, that substantial democratic reforms are being attempted by the present government to do indirectly what cannot constitutionally be done directly under our Constitution. As many experts have pointed out, this act will entrench, enlarge, and enliven not the triple-E Senate that Bert Brown talks about, but the gross inequality of western Canada, the provinces, and indeed even Ontario in the Senate.

Let me explain further. The present distribution of seats in the Senate reflects the Canada of the 1860s. Due to the then population figures and the participation of the founding parts of Canada, the maritime provinces, Ontario, and Quebec each got 24 seats. Newfoundland, on joining Canada, got six seats. British Columbia, with a population now of four million, and rapidly growing, has six seats, while Nova Scotia, with a population of less than one million, has ten seats. Prince Edward Island, with four seats, has 21 times more power in the Senate than British Columbia, taking into account population. Alberta's growing population is also under-represented. Even Ontario may rightly feel unequal, as it has only 22% of the seats, but 40% of the population. However, this is expected of a federal government that attempts to deny Ontario's significant number of House of Commons seats under Bill C-22, which I have a lot to say about, given the opportunity and time.

So if the Prime Minister goes ahead with this major betrayal of the spirit of the triple-E Senate, or anything that vaguely resembles it, it would add to the democratic legitimacy of the inequality of western Canada. Indeed, any further attempts at constitutional change to redress the inequality could be blocked by the elected senators of the smaller provinces, in perpetuity.

In addition, the elected senators will rightly feel they have as much legitimacy as the elected members of the House of Commons to veto legislation, which again would put western Canada and Ontario at a disadvantage, not to mention the possibility of a gridlock. Bill C-20 has no provision on how to resolve an impasse between the two Houses. It is indeed astonishing that this could have been overlooked.

A disguised election for the Senate would be, in my view, an unconstitutional attempt to circumvent the express wording of section 42 of the Constitution Act, which clearly states that the general amending formula in subsection 38.(1)--namely the Parliament of Canada, plus two-thirds of the provinces, representing 50% of the population--applies to the powers of the Senate and the method of electing senators. In my view, Bill C-20 is an attempt to do indirectly what cannot be done directly without the clear instructions of section 42. It is patently unconstitutional.

I am aware that the Government of Quebec and indeed other provinces agree with this legal opinion, and that alone should give pause to the federal government, which has so enthusiastically passed the motion recognizing the Québécois as a nation. Surely that nation should be consulted and have a say over one of the Houses of Parliament that oversees legislation that could affect that nation.

It should also be noted that the House of Commons legislation gives a federal veto over constitutional amendments to Canada's regions, following the 1995 referendum in Quebec. Should not that veto power now extend to all the regions of Canada in an attempt to change the Constitution, whether directly, indirectly, or by stealth?

It should be kept in mind that the Supreme Court of Canada, in the famous patriation reference case, informed Prime Minister Trudeau that he would breach constitutional conventions if he did directly what he could do directly--namely, seeking the repatriation of the Constitution without the substantial consent of the provinces. In this case, we may have a more serious attempt to do indirectly what cannot be done directly under the constitutional conventions of this country and indeed under the Constitution Act of 1867.

There is even a question, in my view, as to whether the federal government has any jurisdiction under section 91 of the Constitution Act of 1867 to pass legislation that is intended to do indirectly what it cannot do directly. It is hardly a power under the peace, order, and good government provision to undermine the existing amending provisions of the Constitution.

Some justice department lawyers and other constitutional lawyers advising on this bill have argued that as long as the Prime Minister retains his discretion under the existing Constitution to recommend to the Governor General who shall be appointed to the Senate, an advisory federal election framework would be constitutional.

I would like to ask those experts, what would happen the very first time the Prime Minister refused to recommend an appointment of a duly elected person under the advisory election framework if all the others who had been so elected were appointed? What would the Supreme Court of Canada say about this refusal to appoint someone who has been elected? What if the court declared the whole process unconstitutional, so that those who were appointed were in limbo as to whether they could continue sitting? What would happen to the legislation that the Senate, which may have been partially elected, had passed? Would it be valid, or would it be null and void?

The enormity of these potential consequences requires, at a minimum, a broad consultation with all the partners in the Canadian federal state, and preferably a reference to the Supreme Court of Canada regarding the constitutionality of the entire framework, not only of this bill but the attempted Bill C-19, which deals with the eight-year limited term for senators, on which the Senate, in my view, rightly withheld judgment until the Supreme Court of Canada pronounced judgment.

The greatest of ironies lies in the professed reasons for introducing this bill. It refers to the need for Senate reform to reflect the democratic values of Canadians, one that equitably reflects Canada's regions, and to maintain the Senate as a chamber of independent, sober second thought. I suggest that if this bill passes, it will entrench regional inequality, create democratic gridlock, not enhance the democratic values, and even call into question the independence of the not really elected senators.

As has been pointed out by Chief Electoral Officer Marc Mayrand, there are problems even in the political financing aspects of this bill. While party-sponsored advertising is not permitted under this bill, there is a possibility of massive spending in the transfer of goods and services, which, again, could make them beholden to deep pockets for the elections.

In addition, the House leader, Peter Van Loan, in introducing the original version of this bill, argued that it was the accumulation of the historic struggle for the rights of women, minorities, and aboriginal peoples to vote. Will they be represented under this framework if it passes? Undermining the Constitution is hardly a democratic value of Canadians. And the bill also, as I've mentioned, entrenches the inequity of Canada's regions.

Perhaps most ironically, the principle behind the consultative election for the Senate is that it reserves the right of the Prime Minister to ignore the results of the vote of all Canadians. That is hardly democratic. This may lead many, especially those in western Canada, and perhaps even in the rest of Canada, to the conclusion that the real reason for this attempt at an indirect and, in my view, unconstitutional amendment is to create an illusory perception of actually doing something on Senate reform for election purposes.

In my view, it is very dangerous to play politics with the most fundamental documents and institutions of this country.

Thank you, Madam Chair.

Bill C-505--Canadian Multiculturalism Act--Speaker's Ruling

[The Speaker, Liberal, Peter Milliken]

I am now prepared to rule on a point of order raised on April 9, 2008 by the hon. member for Scarborough—Rouge River concerning Bill C-505, An Act to amend the Canadian Multiculturalism Act (non-application in Quebec).

I would like to thank the member for Scarborough—Rouge River for having drawn this matter to the attention of the House, as well as the hon. whip of the Bloc Québécois, the hon. House leader of the Bloc Québécois, and the hon. member for Mississauga South for their comments.

The hon. member for Scarborough—Rouge River raised two issues in relation to this bill. First, he argued that the bill as formulated is unconstitutional in that clause 2 states, “The Government of Canada’s multiculturalism policy does not apply in Quebec”. This, he believed, was inconsistent with section 27 of the Charter of Rights and Freedoms.

Second, he argued that Bill C-505 could be seen as a de facto constitutional amendment. He based this assertion on the claim that the provisions in the Canadian Multiculturalism Act mirror the provisions concerning multiculturalism that are enshrined in the Canadian Charter of Rights and Freedoms. If the proposed measure is indeed an attempt to amend the Constitution, the member argued, as his second point, that it should not be in the form of a bill but, instead, in the form of a resolution. His conclusion is that Bill C-505 is not in the correct form and requested either clause 2 be struck from the bill or that the order for second reading of the bill be discharged and that the bill be struck from the order paper.

In his intervention, the Whip of the Bloc Québécois pointed out that one of the criteria used by the Subcommittee on Private Members’ Business in determining the votability of an item is whether or not it appears to be unconstitutional. As the subcommittee did not judge Bill C-505 to be non-votable, the member argued that the matter of constitutionality had been settled.

In his arguments on April 10, the hon. House Leader of the Bloc Québécois argued that the objections raised to the bill were of a legal nature, and not procedural, and reminded the House that the Speaker does not rule on legal matters. He also claimed that the bill seeks to amend an existing law only and has no effect on the Constitution.

The member for Mississauga South stated that the Subcommittee on Private Members' Business, in determining whether or not a bill should be votable, may not be in a position to assess fully its constitutionality. He maintained that the process for dealing with reports of that subcommittee did not afford an opportunity for members to express concerns regarding constitutionality and stated that it was therefore appropriate for the member for Scarborough—Rouge River to seek a ruling from the Speaker.

In light of the issue at hand and the arguments put forth, I would be remiss if I did not refer members to House of Commons Procedure and Practice, at page 542, which states:

Though raised on a point of order, hypothetical queries on procedure cannot be addressed to the Speaker nor may constitutional questions or questions of law.

Mr. Speaker Fraser also succinctly addressed this limited role of the Chair, when he declared in a ruling regarding a similar matter, which can be found in the Debates of September 16, 1991, at page 2179, and I quote:

It may later be for a court to decide that the House has done something that does not have the force and effect of law, but that is a matter for the court and not a matter for the Speaker.

Therefore, mindful of my limited responsibility in this case, I have undertaken to examine the bill only with respect to whether it is in the appropriate form for the purpose that it seeks to achieve.

Let me first address the contention of the hon. member for Scarborough—Rouge River that amendments to the Constitution must be in the form of a resolution. There is no disputing that the House has in recent years considered several resolutions of the type referred by the hon. member. For example, on November 18 and December 9, 1997, the House adopted resolutions dealing with the school systems in Quebec and Newfoundland respectively; and, on October 30, 2001, the House adopted a resolution changing the name of Newfoundland to Newfoundland and Labrador.

But the House has also seen bills proposing to amend the Constitution. Examples in this Parliament include Private Member’s Bill C-223 An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms and to amend the Constitution Act, 1867, standing in the name of the hon. member for Yorkton—Melville; as well as government bills C-22, An Act to amend the Constitution Act, 1867 (Democratic representation) and C-19, An Act to amend the Constitution Act, 1867 (Senate tenure), both standing in the name of the hon. Government House Leader.

I offer these examples simply to explain that this bill cannot be considered not in order simply because it is in the form of a bill and not a resolution. That said, let us examine the actual provisions of the disputed bill.

Bill C-505 consists of two clauses, both of which seek to amend provisions of the Canadian Multiculturalism Act. Clause 1 proposes the addition of a new paragraph to the preamble of the act, concerning the special situation of Quebec and clause 2 adds a subsection to section 3 of the act, exempting the province of Quebec from the government's multiculturalism policy. There is no reference in the bill to any other statute or for that matter to the Canadian Charter of Rights and Freedoms.

I have therefore concluded that, since the purpose of this bill is to restrict the application of an existing statute and since this bill proposes an amendment to the existing statute to achieve that objective, Bill C-505 is in the proper form.

As your Speaker, I have no authority to rule on the constitutionality of Bill C-505. Accordingly, given that Bill C-505 is in the proper form, deliberations on it may continue in accordance with our rules governing the consideration of private members' business.

I thank the hon. member for Scarborough—Rouge River for having raised this matter.

[Prof. Peter Hogg]

Of course it will take a long time, because all existing senators are grandfathered and will be there until age 75, but eventually you will have a Senate in which people retire at the end of every eight years, assuming you pass Bill C-19, and a consultation is held to appoint a replacement.

They will feel that they have the political power of an elected body. That takes us to the questions that were worrying Mr. Murphy at the beginning, that the Senate will eventually become a more assertive and powerful body because of that. I think that will be a consequence.

[Prof. Fabien Gélinas]

There is a question of how risk-averse one is, and people have different temperaments. If it's really a question of how much you want to control the risks, outcomes are never 100% certain--never. It's really a question of degree we're looking at; at least, it seems so to me.

This is a point I had forgotten from your first question concerning the wisdom of going to the Supreme Court. My view is that Bill C-19 is more suspect than Bill C-20, which isn't suspect if taken on its own. Of course, if one goes to the Supreme Court, it would be more effective to send both at the same time to the Supreme Court, but again that is a political decision.

[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.

Thank you.