Bill C-20 (39th Parliament, 2nd Session) Committee on April 16th, 2008

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

I think all of us are finding this discussion today very interesting.

I'd like to ask Professor Gélinas, if Bill C-20 stated that the consultation process will be the manner in which senators are chosen, would that put us across the line?

[Prof. Fabien Gélinas]

When you say the consultation process will become the manner in which senators are appointed, there are two possible meanings. One meaning is that you go to the power of the Governor General, which is mentioned in section 24, in which case it's clearly over the line. The other interpretation is to say that you're trying to bind the Prime Minister to giving the advice that flows from the consultation process, and that, I would say, is a grey area.

On the one hand, you could argue that the powers of the Governor General are not touched, that section 24 only concerns the powers of the Governor General and that they don't include anything that happens before the legal decisions that the Governor General will make.

On the other hand, you could argue that the power of the Governor General under section 24 includes the right to be advised by the Prime Minister and the right to be given advice that's free.

[Charlie Angus, NDP, Timmins—James Bay, ON]

To be very clear here, right now it is the option of the Prime Minister to choose the consultation process or not choose it in any particular case. If the bill said that as of this date this process will be the process that the Prime Minister must accept, that will lead to the appointment of a senator, Professor Hogg, does that go over the line?

[Prof. Peter Hogg]

Like my colleague, I find that a difficult question. But I think if the Prime Minister were required by statute to invoke the process and were then required to respect the outcome of the process--that's your question really--then it's true that section 24 is still not literally amended. But then it seems to me that Mr. Paquette's point becomes very difficult to answer, because then there does seem to be a mandatory move to an elected Senate, albeit behind the back of section 24.

So I think there would at least be a risk of unconstitutionality if the bill had those two elements to it, on Mr. Paquette''s reasoning.

[Charlie Angus, NDP, Timmins—James Bay, ON]

It's very clear to the people of Canada what's being attempted here. This is an attempt to move toward an elected Senate without tripping up the giant elephant that sits in the middle of any room when we discuss the Senate.

The bigger question here is the legitimacy of the process. If you're going to tell the people of Canada there will be a consultation process but the Prime Minister is not bound to accept that choice, the fundamental legitimacy of this process is put into question. In any fundamental democratic principle, the acceptance of candidates who are chosen in a vote is not voluntary, it's mandatory. This is the democratic will of the Canadian people.

So what is the greater risk here? Is it to have a voluntary process that does not need to be respected, or to say to the Canadian people, “If this process is in place, your choice will be accepted”?

[The Chair, Liberal, Albina Guarnieri]

Mr. Hogg, would you like to handle that one?

[Prof. Peter Hogg]

I think what the government is trying to do in the bill, Mr. Angus, is give the expectation that we will move toward an elected Senate, but leave the obligation for that step as a purely political one, and in that way avoid the danger of a finding of constitutionality.

[The Chair, Liberal, Albina Guarnieri]

Do you have anything to add, Mr. Gélinas?

[Prof. Fabien Gélinas]

There is a fairly good chance that even if the Prime Minister were bound to hold consultations and follow the result, that would be found perfectly appropriate by the Supreme Court under section 44. There is that possibility, but it would be in an area much less certain.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Going back to the legitimacy of the process we're being asked to bring to the people of Canada, certainly questions have been raised about the exorbitant price of setting up a process that may or may not be implemented. But I'm not really aware of other democratic systems that work on the principle of “shall”, “might”, and “could”. “Will” is a fundamental word that we use. The government “will” do this if this is law.

We are always being asked to accept the principle that the Prime Minister would likely be bound, but he's not necessarily bound. Do we have any other examples of electing democratic institutions in the world where it's at the whim of a Prime Minister to accept the candidates or not?

[Prof. Peter Hogg]

I can't think of any examples of that. Our Senate is a bit unusual in that it's a relic of a time when democratic values weren't as strongly held as they are now. And of course the House of Lords is still an appointed body.

[Prof. Fabien Gélinas]

I would add that the appropriate comparison might not be the House of Commons but the bench, where there is a consultation process and the Prime Minister keeps a discretion to the end. This is an example that might be as appropriate to the Senate as the example of members of Parliament.

[The Chair, Liberal, Albina Guarnieri]

Mr. Angus, we have time for one quick question.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm just wondering, in dealing with this issue once and for all, whether it would be better to put to the Canadian people the question of where they stand on the Senate so we can actually have real reform. Do you think that's a possible mechanism?

[Prof. Fabien Gélinas]

By means of...?

[Charlie Angus, NDP, Timmins—James Bay, ON]

We could have either a non-binding referendum, or a bill that would be challenged so the Supreme Court would come down and say, “Yes, it is within the power of the Prime Minister and Parliament to mandate an election process with mandated results”. Then we could bring this relic into the 21st century, as opposed to what we're doing now, which is a hodgepodge.

[Prof. Fabien Gélinas]

That's obviously a 100% political question, and I have nothing particular to say about it.

[The Chair, Liberal, Albina Guarnieri]

Our next questioner is Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Madam Chair, and thank you to both of our witnesses for being here.

We are starting to receive some written submissions from different groups, and I've been reading them. One of them raises a concern that I think is incorrect. I'm going to ask our witnesses, and I'm very hopeful they will agree with my assessment.

The national constitution and human rights law section of the Canadian Bar Association submitted a submission in which they discuss whether the proposed law is constitutional. They are not entirely certain one way or the other.

But they raise the following question, and I'm going to quote from it. They say:

Another matter that should be addressed is the potential ramifications of an unconstitutionally “elected” Senate in the long term. If Bill C-20 is successfully challenged 20 years from now, and declared an unconstitutional attempt to amend the Constitution of Canada, a number of issues would arise, including:

- Would senators appointed following the consultative elections lose their seats?

- Would legislation passed by the Senate, populated by senators appointed following consultative elections be rendered invalid?

That strikes me as being an unrealistic fear, but I want to get confirmation from the witnesses.

[Prof. Peter Hogg]

I suppose we might already be in deep trouble, since the Senate has at least one person who was appointed as the result of an election. If it is unconstitutional to take account of an election, we're probably already in trouble.

With respect to the question, this committee is going to make up its mind as to whether there is a serious risk of constitutionality. Of course it will always be open to people to challenge the bill. I suppose a disappointed candidate could challenge the process in some way. I don't think any serious question of constitutionality is likely to wait for 20 years. If it did wait for 20 years and the House was ruled to be unconstitutional, it might be a bit like the Manitoba language reference, where all the laws enacted back to 1896 were held to be unconstitutional by the Supreme Court of Canada. But the court said they could continue to be valid until there was time to correct them. I think something like that would be done by the court to avoid the chaos of saying that for the last 20 years we've been enacting invalid legislation.

I don't think that's a real concern. Of course it is a perfectly reasonable concern as to whether the bill is or is not constitutional.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Okay.

[Prof. Fabien Gélinas]

Concerning the precedent of a senator who was appointed following a consultation, I would like to clarify that it's nowhere on the record that the consultation was taken into account. The Prime Minister was absolutely free to do whatever he wanted at the time.

With respect to the Manitoba language rights reference where the Supreme Court dealt with this difficult issue, I would add that the legislature was illegally constituted under unconstitutional statutes--the legislature itself. So the comparison is obvious, I think.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you.

A second question I have is with relation to something that has been suggested in the past, the idea that an alternative to elections is appointment on the advice of recommendations made by the provincial legislatures. That was actually one of the options put forward in the 1980 Supreme Court reference case. The court at that time indicated that this would violate the principle of non-delegation. The idea that delegation ought not to occur is something I assume has not changed as a result of the adoption of the Constitution Act of 1982 and its amending formula. I'm looking for some confirmation as to whether or not this invalidates that potential alternative option as a means of selecting senators.

[Prof. Peter Hogg]

What's your view on that, Fabien?

[The Chair, Liberal, Albina Guarnieri]

This is true consultation.