Bill C-20 (39th Parliament, 2nd Session) committee  Sometimes this is a question of legislative drafting, but I don't think that's necessarily the case here. In some cases, it's quite clear that one must proceed by section 44 of the Constitution Act, 1982, because one is seeking to amend textually the Constitution of Canada, that is, the Constitution Act.

Bill C-20 (39th Parliament, 2nd Session) committee  Well, it would be possible to have a bill that, as a vehicle--and it's been done in the past--proposes an amendment to the Constitution Act, 1867, that is textually, and also provides for other provisions. In fact, if you were to look at the Nunavut Act, you would see that it has amendments that amended the Constitution Act, 1867 by adding a senator for Nunavut and representation in the House of Commons.

Bill C-20 (39th Parliament, 2nd Session) committee  I'd be happy to add, just very quickly, that this bill does not contemplate a constitutional amendment. This is not an amendment to the Constitution of Canada. It is legislation enacted in relation to the Senate, but it is not a constitutional amendment. Even if it were framed as a constitutional amendment, under the amending processes not all constitutional amendments must be made in relation to the Senate under the 7/50 procedure, which is the general amending formula.

Procedure and House Affairs committee  Yes.

Procedure and House Affairs committee  Let’s take the example of Yom Kippur or another Jewish holiday that usually falls in the month of October and that are important religious holidays, very significant for the Jewish people. There is also Ramadan. These holidays do not necessarily correspond to the statutory holidays on our Canadian calendar.

Procedure and House Affairs committee  In my humble opinion, it would be covered under the word “cultural” because in such a case, it would involve an element of culture rather than religion. I therefore believe the wording of the Bill would encompass this aspect.

Procedure and House Affairs committee  Yes.

Procedure and House Affairs committee  It could create some uncertainty, because as has been explained, proposed section 56.2 provides a fairly explicit and elaborate process. It reposes the Chief Electoral Officer to decide if the polling date should change, whereas the clause that would be added to proposed section 56.1 would simply state, as a rule of law and with no discretion left to the Chief Electoral Officer, that the date would change if the election were to fall on a holiday.

Procedure and House Affairs committee  It's not necessarily in conflict; it would just oblige the Chief Electoral Officer to work things through. Now it will no longer be part of the discretion of the Chief Electoral Officer, it will be simply a rule of law that, through the affliction of time and the operation of the legislation, should the electoral date fall on a Monday that is a holiday, then it shall automatically be moved to the following Tuesday.

Procedure and House Affairs committee  Yes, I think so, because it would be a rule of law.

Procedure and House Affairs committee  The change simply establishes a rule of law, as a legislative rule, that if the third Monday of October is a holiday…

Procedure and House Affairs committee  That’s exactly it. In such a case, the rule would also apply to that new holiday, whether it is statutory holiday or other recognized holiday.

Procedure and House Affairs committee  Thank you. Warren Newman, general counsel, administrative law section, Department of Justice.

Procedure and House Affairs committee  Thank you very much. Again, if the answers are long, I don't mind getting them in written form. I actually wanted to ask Ms. O'Hara or Mr. Newman these questions. Notwithstanding the discussions that have happened, in a perfect world, would the best way to effect this be to have a constitutional amendment?

Procedure and House Affairs committee  I'm not sure how we could do that, Mr. Dewar, quite frankly. I've indicated the problems of trying to define exactly the confidence convention, and I think Mr. Newman has indicated that it has to be flexible.