Bill C-20 (Historical)

Senate Appointment Consultations Act

An Act to provide for consultations with electors on their preferences for appointments to the Senate

This enactment provides for the consultation of electors in a province with respect to their preferences for the appointment of Senators to represent the province.
Part 1 provides for the administration of a consultation, which is exercised under the general direction and supervision of the Chief Electoral Officer.
Part 2 provides for the holding of a consultation, initiated by an order of the Governor in Council.
Part 3 provides for a process whereby prospective nominees may confirm their nominations with the Chief Electoral Officer.
Part 4 addresses voting by electors in a consultation.
Part 5 sets out the rules for the counting of votes pursuant to a preferential system, which takes into account the first and subsequent preferences of electors as indicated on their ballots.
Parts 6 and 7 deal with communications and third party advertising in relation to consultations.
Part 8 addresses financial administration by nominees.
Part 9 provides for the enforcement of the enactment, including the establishment of offences and punishments for contraventions of certain provisions.
Part 10 contains transitional provisions, consequential amendments to the Canada Elections Act, the Director of Public Prosecutions Act and the Income Tax Act, coordinating amendments and commencement provisions.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

If I have time, I would like to ask what you would propose. Do you have anything to propose in order to avoid this kind of problem?

Because what we've heard so far is the Prime Minister say “I think we need more women”, or “I think we need more senior citizens”, or we need more of this group or that group, and then he goes ahead and names these people. And of course that's not where we're going with Bill C-20.

[Roger Gibbins, President and Chief Executive Officer, Canada West Foundation]

Thank you very much.

I want to apologize for the absence of my colleague, Robert Roach, who was going to be here. He took ill from some weekend travelling in Winnipeg, so I'll be here by myself.

I'm pleased to have this opportunity. Senate reform has been an interest of mine since about 1973. It's been a longstanding interest of the Canada West Foundation, which I am associated with right now. I want to stress that this is not a Canada West Foundation position. As an organization we do not have a formal position on either the bill or Senate reform itself.

I also want to stress by way of preamble that I am a political scientist by training, not a constitutional lawyer. That doesn't mean I don't have constitutional opinions, but they are based more on political instincts than legal training.

My notes will be available to the committee once translation has been completed, perhaps by the end of the week. I will speak to them fairly briefly at this point, and of course will be happy to answer any questions.

Let me set the stage for my remarks by emphasizing the importance of context for Bill C-20. The context that's important to me is the Government of Canada's commitment to pursuing comprehensive Senate reform. It's only within that context that Bill C-20 makes sense, and I'll come back to this in the bulk of my comments.

In the written draft I go through the case for Senate reform in a general sense. I won't repeat the details of that, because these arguments will be well known to the committee. I'll just mention the three points that are highlighted. One is the need for more effective regional representation. The second is to have a counterweight to majority governments in the House of Commons. Parliamentary government tends to concentrate power, and the Senate provides at least the possibility of a counterweight, in a sense.

The third argument is really a democratic argument. The language I would use is that of environmentalism: that the Canadian Senate is not sustainable for the long run. I would stress that although my original interest in this topic came from failures in regional representation, to my mind now the most compelling argument for Senate reform is for democratic renewal. I think the arguments for regional representation are still important, but they're not as compelling to me as the need for democratic renewal.

Although the power of the arguments for Senate reform has grown over time, we've made no progress in reforming a 19th century institution so it can better take on the challenges of the 21st century. We are spinning our wheels while the world changes around us.

In thinking about this, it seems to me we're faced with two options. We can wait until the Senate implodes in some crisis of democratic legitimacy, some major conflict with the House of Commons; or we can try to re-engineer the Senate to bring it more into line with liberal, democratic values. To my mind at least, to do nothing only postpones the inevitable. We've passed down the status quo to our children and our grandchildren in an irresponsible fashion. The image of the Senate that comes to my mind is that of an institution cobbled together 141 years ago and now frozen in time like an insect trapped in amber.

So where does this lead me with respect to Bill C-20? My comments here are pretty straightforward. I think Bill C-20 is a reasonable step forward. It's consistent with federal states, such as Australia and the United States. It's consistent with even the most rudimentary understanding of democratic government. It's consistent with recent public opinion polling and Canadian values.

I recognize that Bill C-20 does not take us very far along the path to comprehensive Senate reform, and you're aware of the things it doesn't touch. It doesn't touch a whole bunch of things about the Senate. So it's not a final destination, it's only a small first step, but it is a first step, and it does show that incremental reform is possible.

For years Canadians have been told that Senate reform may be desirable, but it must be approached comprehensively rather than incrementally. We're then told that comprehensive reform requires constitutional amendment, and that constitutional amendment is impossible, and therefore Senate reform is impossible.

So we have a neat and tidy circular argument from which the perfect becomes the enemy of the good. We're told that any incremental reform, even a small step, is to be shunned in case we are pushed onto the slippery slope of constitutional reform. To my mind this has fostered a somewhat dishonest public debate, because if everyone lines up in favour of Senate reform it just divides those people who say it's really desirable but can't be done from those people who argue for incremental reform, and I'm certainly in that latter group.

Concern has been raised that Bill C-20 might turn out to be the final destination, that it might not only be the first step but the last step, and therefore the election or selection of senators could lock into place the existing regional distribution of Senate seats and the legislative powers of the Senate. I think this concern rests on the assumption that newly elected senators would be even more resistant to change than the existing senators. I don't accept that argument. I think the existing senators have set the bar for resistance extremely high, and I can't imagine any combination of elected or appointed senators who would be more resistant than the status quo.

I do admit, and I think this is a critical point, that the changes proposed by Bill C-20 would leave us with a bit of a dog's breakfast in terms of the Senate. But I see this as a virtue of the bill rather than a fatal flaw. The bill would destabilize the status quo and therefore force Canadians to come to grips with the design of a modernized and democratic upper house. The process has to start somewhere, and Bill C-20 sets out a reasonable starting point. I do believe the modest changes today make it more likely that we'll be able to generate the political will to confront more substantive changes tomorrow. If we begin chipping away at the status quo, we can set in motion the political dynamics that will enable us to carry the process forward.

I recognize that Bill C-20 pushes the envelope of constitutionality, although the constitutional constraints are at best unknown in the context of a living-tree Constitution. We know the Constitution is unfolding over time. We know the courts are not bound by the black letter of the law. We saw this in the way in which courts have progressively expanded the Charter of Rights and Freedoms. In any event, I stress I'm not a constitutional lawyer, but perhaps because of that I'm unwilling to dump the whole issue of Senate reform into the lap of courts, who, in my view, are not well equipped to deal with what is ultimately a political question. The democratization of parliamentary institutions and the design of an effective regional representation are not fundamentally legal questions; they are political questions.

In a similar fashion, some would argue we should not proceed without first securing provincial support. However, I'm reluctant to concede that the design of national parliamentary institutions should rest with provincial governments. I do not believe the federation should be decentralized to the point where provincial governments can, in their own interests, pre-empt the democratic reform of national parliamentary institutions. Nor do I believe the potential opposition in provincial governments to Senate reform necessarily reflects the desire of provincial populations, and it's those provincial populations we want to represent.

I'll just draw your attention to a useful analogy to the Charter of Rights and Freedoms. Many of the provincial governments were initially resistant to the Charter of Rights and Freedoms. The Government of Canada proceeded, and it turned out the provincial populations were overwhelmingly in support of this and the provincial governments caved.

If Bill C-20 gets the ball rolling with respect to Senate reform, what might the next steps be?

I'll end with this set of points. We are confronting a major problem. We don't have an acceptable model of what a comprehensively reformed Senate might look like. We simply don't have something we can pull off the shelves.

My organization has been associated with the triple-E model. I think the triple-E model is increasingly shopworn, and I think it now lacks relevance to the country we are becoming.

It's not a surprise to me that we don't have an acceptable or consensual model of what a reformed Senate might look like. We've devoted so much of our intellectual energy to blocking Senate reform that we've had very little left over to think through what a reformed Senate might look like.

If we're able to move forward, we have to figure out an appropriate form of election. If we don't get the election format right, we can dig ourselves into very serious trouble. We need a formula for regional representation that captures the complexity of this country and figures out how to deal with a very unequal distribution of population across provinces. We have to figure out how to work the sparsely populated northern territories into a reformed Senate.

We have to think through how we can have non-territorial representation in the Senate—how we can have an electoral system that ensures, for example, that the aboriginal population of Saskatchewan, the Acadians in New Brunswick, or the Liberals in Alberta are represented in some way within the Senate.

We haven't worked out what the impact of a reformed Senate might be on the House of Commons. I think Senate reform would set in motion some fairly fundamental reforms within the House of Commons, including a move to finally have full representation by population within the House of Commons.

I'm happy to discuss this at length, because you're the only group I can discuss it at length with. I believe that if we can get it right, we can create a Senate that will be a truly national legislature, reflecting not only regional diversity but also diversity within provincial communities. If we get the design details wrong, however, we could make a bad situation worse.

Some argue that we should stop until we have everything figured out, but past experience shows that Canadians will not even begin to tackle these critical design questions until the Senate reform train leaves the station. If we do not build on the momentum that Bill C-20 will create, nothing will happen. There must be a stimulus to creative thought, and this is what Bill C-20 provides.

To conclude, some would argue that we should be cautious, that we should wait for the premiers to fall into line or wait for the courts to chart a path forward. However, we have been cautious, excessively cautious, for generations, and nothing has happened. Nothing has happened for 141 years.

In quoting from the bill, I would argue that the Parliament of Canada has a primary responsibility to ensure “that Canada’s representative institutions, including the Senate, continue to evolve in accordance with the principles of modern democracy and the expectations of Canadians”. The abdication of this responsibility by Parliament will inflict serious damage on the very fabric of democratic political life in Canada.

Thank you. I'd be happy to respond to any questions you might have.

[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.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Thank you, Madam Chair.

I just want to perhaps pick up on where Mr. Simeon left off a couple of seconds ago.

One of the things that really frustrates me, maybe a bit more because I'm a westerner, has been this whole defence of the status quo in particular by the Liberal Party of Canada over my political lifetime—I've been here almost 15 years now—by both Prime Ministers Chrétien and Martin, where every suggestion that was made to make any change to the status quo situation of the Senate of Canada was met by, “We're not going to do anything piecemeal”. That was their standard response in question period, in interviews, every time they were asked during debate, during election campaigns. In other words, it kind of fits in with what Mr. Watts is suggesting, which is that if we want to bring about meaningful Senate reform, the only way to do it is to open up the Constitution and do it “properly”.

I can tell you that this is very frustrating for vast numbers of Canadians, I believe, who want to see our institutions evolve somewhat. I think what we have to deal with sometimes is what is within the realm of the possible. I think that's what Bill C-20 is dealing with--what is possible.

I don't have in front of me today the full list of how many times over the last 100-plus years successive governments and parliaments and scholars have tried to initiate some substantive constitutional change to the Senate, but I think all of us would agree, as would anybody who's taken even a superficial look at it, that it's been an extraordinarily frustrating exercise to go through, and that's even with the people who are still alive that have gone through that, whether it was the Charlottetown accord that led to the referendum, or before that the Meech Lake accord, which are the two in recent memory.

My understanding--and this is where I would look for some direction from the three gentlemen--is that even in the United States, their elected Senate evolved in a piecemeal fashion, if I can call it that. My understanding, at least, is that the individual states began to elect their senators. Over a period of time, and as Mr. Simeon was trying to indicate, I believe it gradually evolved to become the norm, as opposed to appointment. Eventually, it created enough of a groundswell from the public that it became the accepted standard, and they ended up with a fully elected Senate south of the border.

I would ask the learned gentlemen if they could point to other democracies in which Senate reform came about in a piecemeal manner. It started slowly and grew as public pressure said, well, maybe there is a better way to do this.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you.

The possibility has been raised that the regions of Canada could use the legislative provision that was passed after the Quebec referendum of 1995, that is, the right of veto. Quebec, which has already come out squarely against Bill C-20, would have the right to veto it because of the legislation passed after the 1995 referendum.

What do you think?

[Prof. Ronald Watts]

Your statement is exactly what I've been trying to argue— that Bill C-20 is an example of Parliament's trying to do indirectly what it can't do directly. My argument is that if an institution as fundamental as the Senate is going to be altered, we ought to do it directly. I think it needs to be done, but I think it ought to be done directly, difficult as that may be. Richard is right in pointing to the difficulties, but just because it's difficult doesn't mean we should be devious about it. The difficulties are inserted in the amendment process of the Constitution to ensure a broad consensus in support of amendment. That's why it's important to have the provinces concur. That's why it's important to have widespread public discussion.

My concern is not with the objective of the bill, but with the means. And I don't think the objective justifies the means.

[Prof. Ronald Watts]

I will be brief on this. I don't have anything to add on the second question, other than the fact that it does point to one of the reasons we have the process of constitutional amendment that we do, requiring provincial participation in the process.

With regard to the first, I'm assuming that the reason it's not necessary or has not been put into the bill to state whether the Prime Minister has obligations or not is simply the assumption that once you have the electoral process operating, public pressure will force the Prime Minister to follow the expression of public will. In other words, the assumption, I think, in Bill C-20 as it's currently worded, for all the criticisms I make, is that public pressure will create the convention that a Prime Minister will always have to follow whoever is nominated by the consultative process.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Madam Chair.

I would like to thank all three of you for being here. Your knowledge of and insight into the Constitution and the bill we are considering today are distinguished indeed.

I have two major questions to ask you. The first deals with executive power in relation to the appointment of the people winning the elections. Nowhere in Bill C-20 does it say that the Prime Minister is required to appoint the people who have been elected by popular vote. He may, at his discretion, submit the list to the Governor General. So he could choose half of the people on the list, or more, or none, or give the Governor General a list of people who have not been elected by popular vote.

This bill does not affect the Constitution and could therefore be passed like an ordinary bill. Why does it not give more details about the Prime Minister's responsibility vis-à-vis that list? That is my first question.

My second question deals with the power of the provinces. I think that it was Mr. Heard who told us, and let me read his last sentence:

...the Senate is not something for the national Parliament to radically reform without the consent of the provinces.”

However, we know that the way in which senators currently represent their provinces is not the same in all provinces of Canada. For example, in Quebec, senators represent a specific region, which is not the case in the other provinces. How can we change the role, the appointment process and the responsibilities of senators without asking the Government of Quebec for its position on the matter?

The questions go to whichever of the three witnesses wants to reply.

[Professor Richard Simeon, Professor, University of Toronto and Harvard University, As an Individual]

Thank you very much, Madam Chair. It's certainly a privilege to be able to testify before this committee, and I thank you very much for the opportunity. I also apologize to you and to my colleagues present that the press of commitments means I have to talk to you via video.

I confess that I am deeply ambivalent about Bill C-20 as well and about how to respond to it. I share most of the concerns that have been raised by my colleagues, but I think I do perhaps come down at a slightly different point.

There is much to be said in favour of Bill C-20, I think. After decades of frustration in our debates about Senate reform, it does break a logjam and opens the possibility of real change without plunging us into yet another round of failed constitutional negotiations. It does bring an element of real democracy into the process of selecting senators, thus potentially making the Senate more representative, responsive, and accountable.

It promises a check on the excessive concentration of the power of appointment in the hands of the Prime Minister—a major part of the democratic deficit in Canada and the fundamental reason for the weakness of the Senate as an effective body representing regional and provincial interests in central institutions.

It creates the possibility of a Senate that is perhaps more effectively able to represent provincial voices in the federal Parliament. Professor Watts referred to Tom Kent's argument, and I think I agree with him that the legitimacy of the central government will be enhanced by election, and that will place some sort of potential check on the ability of premiers to have a monopoly of representing the provincial views on national issues. I think that would make for a healthy federalism.

So there are some good things to be said here, but of course I have some real doubts about Bill C-20 as well, and they are partly procedural and partly substantive.

First, on procedure, there are several elements here. The two reforms under discussion, consultative elections and a fixed term for senators, are a very limited second best to more fundamental reform. I realize the scope of the bills is sharply limited by the government's desire to find a way to make changes by Parliament alone, rather than through formal constitutional amendment.

But the cost of that is that a full review of the Senate, as Professor Watts said—one that would include the roles and powers of the Senate and the allocation of seats across provinces—will not take place. And yet all these factors are linked and need to work together. For example, do we want to enhance the power of the Senate, as this bill likely does, without addressing the gross underrepresentation of western provinces in Senate seats?

Second, we have not had a full public discussion about Senate reform here. There's been virtually no public involvement in this process, even though over the years many imaginative proposals for different kinds of reform of the Senate have been made.

In addition, as has been pointed out, the Senate is a vital element in federalism, so the lack of intergovernmental consultation here is a problem. A number of provinces, including a unanimous Quebec legislature, have objected to the bill. Several provinces already have or are considering their own legislation to generate potential Senate nominees. Indeed, I think that suggests an interesting alternative avenue that we might explore.

What if all provinces were to hold elections for nominees, the results of which would be submitted to the Prime Minister? He would retain his constitutional discretion over appointments and could ignore the result if he felt the provincial processes were undemocratic, but it seems to me a way to achieve a lot of what's intended here without raising quite the same constitutional difficulty that this bill does.

The federalism perspective casts another light on the issue of the constitutionality of Bill C-20. I do defer to those legal experts, such as Peter Hogg and Patrick Monahan, who have told you that the bill is drafted narrowly enough that formal amendment is not necessary, but even they admit we could easily find ourselves in a constitutional grey area, especially if the bill is strengthened.

But the reason we require the amendment for major change in the Senate is that the interests of provinces are so deeply engaged. Whether or not this bill is constitutional in the large “C” sense of that word, it does suggest, as has been pointed out, a new set of rules that could in the long run significantly affect the role and powers of the Senate and thus would be a change in our operating or conventional Constitution, with potentially important implications for federalism.

So, yes, there are real procedural problems.

Next I'll make some observations on the substance of the bill.

Perhaps the most troubling aspect for me is its uncertain character: the government may or may not decide to hold a consultative election; it may or may not decide to appoint those who have won the election; elections may be held in some provinces and not in others.

It seems to me that if we are to have Senate elections, let's do it. They should take place everywhere. The results should be binding, and so on. It would be a major confusion for citizens if, whenever there was a vacancy, they were unsure about whether there would be a vote and what its effects would be. It also seems odd that we would legislate the complex and detailed rules set out in the legislation and mobilize all the resources of Elections Canada to manage an election whose status and effect are unclear.

Second, I raise the question of when senatorial elections would be held. The bill contemplates holding them at the time of either a federal or a provincial election. The Chief Electoral Officer has argued persuasively that coordinating with provincial election law could be very complicated, so it's most likely that senatorial elections would coincide with federal elections, but there are problems with that: the likelihood is that the Senate election would be lost or drowned in the broader focus on the general election; Senate election results would be driven by the preoccupations of the national parties; and it would be difficult to keep funding and other activities of the Senate apart from general elections.

It would be far better, I believe, to conduct Senate elections separately, on fixed dates. Perhaps one day every two years could be set aside as Senate election day, with elections held for all vacant Senate seats on that day. That would make it simpler to administer, it would reduce partisanship, at least somewhat, and it would provide provincial electorates with a much greater ability to reflect on how they wish their interests to be represented in Ottawa.

I also have a word or two about the single transferable vote system that is provided here, but I don't want to say much about that because I'm running out of time. Let me just say that if we're going to introduce two major sets of changes--a change to the electoral system and fundamental changes to the Senate--then we should realize that an enormous public education process is necessary here. We've had two failed referendums about electoral reform in Ontario and B.C., and that's partly because in neither case was there proper provision for an educational process.

There are a number of other issues. The funding provisions are unclear, and campaigning will be expensive, so it's unclear why political parties can contribute services but not direct funding, or why there are no direct limits on direct contributions to candidates, which is different from other elections. And should there not be some form of public subsidy for senatorial election candidates? These kinds of questions all have a bearing on whether and how much we want Senate elections to be inoculated against party influence, and indeed how seriously we take these elections. Much clarification is necessary.

The most important question is, of course, what the effects of the changes would be in the very long run. Political scientists and constitutional designers have a very poor track record in predicting the consequences of institutional change, but clearly, as has been said, this is pretty fundamental. Once the system is in place and accepted, the Senate would have far more legitimacy, and hence influence, than it has at present. It would be a significant alternative centre of power, especially since its powers would remain intact. We might say that the House of Commons would remain the confidence House, with the power to make and unmake governments, but that's a convention, and it could easily change with a more legitimate Senate. However, I'm not sure that these doubts and uncertainties about the long-term future should stop us from doing something now to get this ball rolling.

Let me conclude by saying that I do not love this bill. I see it as an incremental ad hoc effort whose main outlines are shaped by the desire to make some change without falling into the pit of constitutional change. One certainly might argue that we should have the larger debate, even if it does take a long time; after all, there's no outcry in the streets for urgent reform, no crisis calling out for action, and so on.

Nevertheless, on balance, I would say, despite my misgivings and my preference for an alternative route, let us make this change but with a few alterations. I would like to see the following happen: that the bill be strengthened in some of the ways I've already suggested; that elections be held in all provinces, for all senatorial appointments; that they be honoured by the Prime Minister; and that there be an election day, and so on.

I realize that such strengthening might well tip this over into a change that does require formal amendment. Perhaps the best way would be to strengthen the bill in the Commons; seek a Supreme Court reference on its constitutionality; and see where it does or it does not transgress the amendment procedures. Then the court would be able to clarify for the House the scope and limits of what Parliament can do unilaterally and thus guide the final debate on this bill.

Thank you very much, Madam Chair.

[Prof. Andrew Heard, Associate Professor, Department of Political Science, Simon Fraser University, As an Individual]

Thank you, Madam Chair.

First of all, I would like to thank you for inviting me. It is a pleasure and an honour to be here today.

Bill C-20 represents a novel attempt at Senate reform that deserves substantial attention. Unfortunately, unlike many bills before Parliament, serious questions arise about whether this piece of legislation is within the legislative powers of Parliament. On balance, I'm persuaded by the argument that Bill C-20 is unconstitutional.

It can be readily agreed that Bill C-20 does not alter any provisions of the Constitution Act. Bill C-20 directly conflicts, however, with the Constitution Act, 1867, in specific details relating to the qualification of senators. These conflicts relate to citizenship, residency, and financial assets. While these conflicts are substantive, they could and should be easily corrected.

On the broader details of the election of nominees, however, there are no substantial conflicts with the wording of the relevant constitutional provisions. However, the constitutional validity of legislation hinges on much more than the absence of manifest conflicts between the wording of an act and that of the Constitution. Fatal conflicts can also involve a clash with judicial interpretations of the substantive content of constitutional provisions.

Potential problems for Bill C-20 arise principally from the Supreme Court of Canada’s opinion in the upper house reference. The court held unanimously that Parliament could not alter any “essential characteristics” of the Senate, and neither could Parliament legislate direct elections for the Senate.

When the Supreme Court examined the issues in the upper house reference, the relevant powers of Parliament were then found in subsection 91(1) of the Constitution Act, 1867. This section declared that Parliament could amend the Constitution of Canada with five exceptions. Read literally, subsection 91(1) appeared at the time to have granted power to Parliament to alter or abolish the Senate, because the Senate is not mentioned in the five exceptions to Parliament’s unilateral powers. Nevertheless, the court ruled that the essential characteristics of the Senate were beyond the powers of Parliament.

Several legal authorities have argued that the repeal of subsection 91(1) and its replacement by section 44 of the Constitution Act, 1982, have rendered the upper house reference moot. It is not clear, however, why this should be so. The essential characteristics referred to by the court that required protection were not mentioned in subsection 91(1). Indeed, they were read into or drawn from the preamble to the Constitution Act, 1867. These characteristics were not changed by the enactment of the Constitution Act, 1982.

Furthermore, the limitations on Parliament’s power to legislate on the Senate were read into subsection 91(1) by the court when no such restrictions were present. The new unilateral amending powers of Parliament found in section 44 now contain several explicit prohibitions against Parliament acting unilaterally to pass amendments relating to the Senate, including the method of selecting senators mentioned in paragraph 42(1)(b). Rather than consigning the upper house reference to the dustbin, the constitutional changes in 1982 appear to actually reinforce that decision.

The ultimate question that must be resolved is whether the indirect nature of the popular consultation process does in fact save Bill C-20. Clearly, legislation to institute direct elections would run afoul of the upper house reference and paragraph 92(1)(b) of the Constitution Act, 1982.

The answer to this question hinges on how literal an approach one takes to constitutional jurisprudence. Some argue that Bill C-20 is constitutional because of the absence of a direct conflict with the legal powers and discretion of the Governor General in sections 24 and 32 of the Constitution Act, 1867. However, there is considerable evidence that the Supreme Court of Canada would not take such a literal, black-letter approach. The history of Bill C-20 and its predecessor, C-43, clearly shows that the pith and substance of the bill is to achieve an elected Senate.

When trying to establish the true nature of legislation, the courts often ask what deficiency the legislature is trying to remedy. In the case of Bill C-20, numerous government statements plainly declare that the problem they wish to address is the unelected nature of the Senate.

It is the government's intention that only those individuals chosen by the electorate will take seats in the Senate. In essence, the remedy provided by Bill C-20 could not be any different than if direct elections were instituted.

Bill C-20 does contain legal discretion on two key matters, which supporters of the measures say are crucial to its constitutionality. There is no obligation—no legal obligation on a government—to hold an election for Senate nominees, and there is no legal obligation to appoint any nominee once they have been declared winners. One can point to the history of senatorial elections in Alberta for evidence that future governments might exercise discretion not to recommend that the Governor General select elected nominees for the Senate. Jean Chrétien and Paul Martin ignored the winners of Alberta's senatorial elections for eight Senate appointments between 1996 and 2005.

However, Prime Ministers may well not be able to ignore Bill C-20 once enacted. First of all, it makes a tremendous difference that this election process would be enacted by the Parliament of Canada and not by a provincial legislature venturing out of its legislative domain. Secondly, a question arises as to how the courts would react to a suit brought by a nominee elected under the Bill C-20 process but overlooked for Senate appointment. Clearly, in my view, the courts would not issue a writ of mandamus requiring the Governor General to appoint the nominee; there simply is no legal obligation under Bill C-20 to enforce.

However, there is every likelihood that the courts would not leave the matter there. In the Quebec secession reference, the Supreme Court could have simply stated that Quebec does not have the right to secession under either Canadian or international law. Instead, the court went on to declare that the Government of Canada would have a moral obligation to negotiate separation if a clear majority of Quebec voters had agreed to separation in a clearly worded referendum. In the patriation reference, the Supreme Court also could have simply said that the federal government can, in law, unilaterally request changes to the Constitution that affect provincial powers, but it went on to declare that substantial provincial consent was required by convention. Thus it is highly probably that the Supreme Court of Canada would also comment on the government's political obligations to respect the people's wishes under the Bill C-20 regime.

It would be all but impossible for a government to ignore the clear wishes of the people in a nominee election process conducted with all the seriousness and substance of a regular election for members of the House of Commons. If Bill C-20 were enacted, it would not take long for a constitutional convention to be established that prime ministers should only recommend elected nominees for selection to the Senate. The democratic principle would impose a moral and political obligation from the outset. In the end, then, the theoretical discretion left to the Prime Minister and the Governor General in Bill C-20 may quickly prove to be a mirage.

In conclusion, for all intents and purposes, Bill C-20 creates an electoral process to transform the Senate from an appointed body into an elected chamber. Bill C-20 represents an attempt to radically alter the essential characteristics of the Senate as it was created and has operated since 1867. The chosen method for this drastic reformulation is also intended to exclude the provincial governments, whose consent would be required if this reform were proposed through a formal amendment. The Senate was a foundational institution in Confederation, over which considerable debate was expended in order to create this country.

In 1982, the first ministers agreed that amendments to the powers and methods of selecting senators should only be done through the general amending formula. As such, the Senate is not something for the national Parliament to radically reform without the consent of the provinces.

Thank you.

[Professor Ronald Watts, Professor Emeritus of Political Studies, Principal Emeritus, Institute of Intergovernmental Relations, Queen's University, As an Individual]

Madam Chair, let me express my appreciation for this invitation to present my views on Bill C-20.

l wish to draw attention to two concerns about Bill C-20 in its present form. The first has to do with the legislative procedure, and the second with the lack of context in terms of the relation of the selection process to the character, functions, and role of the Senate within Parliament.

Turning to the first, the first concern relates to the use of ordinary legislation to effect what is, in substance, a constitutional amendment. The explicit objective outlined in the preamble to Bill C-20 appears to be to replace patronage in the appointment of senators by a more democratic electoral element in the process of selection. Bill C-20 indeed appears to have been very carefully crafted to create a procedure that neither contradicts nor purports legally to alter in any way the Governor General's power of appointment or the Prime Minister's right of advising the Governor General.

But it violates the spirit of the Constitution Act, 1982, which explicitly states in subsection 42(1) that an amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1), and specifically lists the powers of the Senate and the method of appointing senators in paragraph 42(1)(b).

Subsection 38(1) requires not only a resolution of the Senate and House of Commons for such amendments, but resolutions in two-thirds of the provinces that have, in aggregate, at least 50% of the population of all provinces.

The purpose of this amendment procedure, outlined in subsection 38(1), is to ensure a broad consensus for amendments to the basic features of our constitutional structure. Difficult as this may make amendments, nevertheless, this requirement is fundamental to Canadian federal democracy. The effort to avoid this procedure by reforming the Senate on the sly through the devious use of ordinary legislation constitutes, in my view, an anti-constitutional process. It purports to seek a democratic objective by resorting to a non-constitutional and hence ultimately anti-democratic process.

The Supreme Court, in 1978, declared that, “To make the Senate a wholly or partially elected body would affect a fundamental feature of that body”, and the Supreme Court went on to give clear and unanimous guidance that Parliament could not unilaterally alter “the fundamental features or essential characteristics of the Senate”. No matter how democratic the objectives of Bill C-20 may be, and no matter how difficult the process of constitutional amendment may be, those objectives should be pursued by the appropriate constitutional process, rather than in the devious manner proposed by Bill C-20.

A second concern arises from the proposal in Bill C-20 to alter the appointment process for senators without relating these alterations to the broader context of the role, representative basis, functions, and powers of the Senate as a part of the parliamentary structure. Any reform of the Senate must take account of three factors that are in fact interrelated: the representation of the regions and provinces, the mode of possible election, and the powers of the second chamber.

To consider just one of these aspects--without its relation to the others--by a piece of discrete legislation is likely to create unintended consequences in the relationship between the Senate and the House of Commons. For instance, if the current powers of the Senate--equal to those of the House of Commons except for the introduction of money bills--remain for a Senate whose members gain the legitimacy of an electoral base, this could produce a serious challenge to the principle of House of Commons primacy and of cabinets responsible to it.

It is no accident that in virtually all federations with parliamentary institutions elsewhere, even in those parliamentary federations with relatively strong second chambers such as Australia and Germany, the constitutional powers of the second chamber have been more limited. It is only in federations with separated executives and legislatures, not parliamentary ones, such as in presidential congressional systems, that equally powerful second chambers have proved sustainable. Furthermore, of the seven federations in which all the members of the second chamber are directly elected, only Australia is parliamentary in form. In other parliamentary federations elsewhere, other than Canada--some eight of them--most rely on election by state legislators, appointment by state governments, or by a mixture of processes.

In Canada, despite the almost equal formal constitutional powers of the Senate in practice, its lack of electoral legitimacy has induced senators generally to play a secondary role on most occasions, because of the democratic legitimacy accruing to the House of Commons. That raises the question, would a Senate composed of ambitious politicians with what becomes an electoral base, and with their individual importance enhanced by a smaller chamber than the House of Commons, willingly eschew exercising their full constitutional powers? There's a very real risk that senators with an electoral mandate, even if provided indirectly by legislation but without modification of the current formal powers, would exercise those powers that they have not dared to exercise in defiance of the House of Commons when they were clearly unelected.

Here we might note our pre-Confederation history in the united Canadas. In 1856, with John A. Macdonald's support, an elected second chamber was adopted. But after eight years of its assertiveness complicating the operation of responsible government, Macdonald admitted publicly that the elective system did not, and I quote, “fully succeed in Canada as we had expected”. Consequently, in 1864 it was he who introduced into the conference at Quebec the resolution for appointed members of the Senate.

Does this mean that I support the status quo and am opposed to the reform of the Senate? Not at all. First of all, my own comparative study of some 25 federations throughout the world has convinced me of the importance of an effective federal second chamber toward making a federation effective, including parliamentary federations.

To those in Canada who would argue for abolition of the Senate, I would point out that of 25 federations in the world, only five do not have federal second chambers. These are: the United Arab Emirates; Venezuela; and three small island federations, each with less than one million in total population, of Comoros, Micronesia, and St. Kitts and Nevis. Virtually all the other federations, although in varied forms, have found a federal second chamber desirable and necessary for at least two functions: legislative review, and the inclusion of distinctively regional views in the federal decision-making process.

For information on this federal experience elsewhere, I am leaving with the clerk of the committee copies of a recent paper of mine entitled “Federal Second Chambers Compared”, which will lay out in much more detail the experience of other federations in relation to second chambers.

As far as the function of independent legislative review and related activities are concerned, such as investigative reports, the Canadian Senate has in fact, as pointed out in many of the contributions to the book edited by Serge Joyal entitled Protecting Canadian Democracy, provided a very useful complement to the House of Commons. Indeed, individual senators such as, to name a few, Hugh Segal, Lowell Murray, and Michael Kirby have made a superb contribution to the work of Parliament.

But as to the second major function of second chambers in federations generally--that is, providing a channel for the involvement of distinctly regional viewpoints in policy-making within institutions at the federal level--the Canadian Senate's lack of political legitimacy has meant that by comparison with other federations it has fallen short of the functions performed by second chambers in most federations. These are the functions that Canadian political scientists have come to refer to as intra-state federalism.

That these functions are important was recognized by the Canadian Supreme Court when it declared, in 1978, and I quote:

The Senate has a vital role as an institution forming part of the federal system....

It went on to say:

Thus, the body which had been created as a means of protecting sectional and provincial interests was made a participant in this legislative process.

Given the current weakness of the Senate in performing this federal role, Senate reform, in my view, is important and urgent. Here I would draw attention to the paper by Tom Kent entitled “Senate Reform as a Risk to Take, Urgently” in the “Special Working Paper Series on Senate Reform 2007-2008” of the Institute of Intergovernmental Relations at Queen's University.

Reform is needed to make the federal coherence of Canada more effective. As one of the most decentralized federations in the world, we not only need provincial autonomy, but federal institutions that bring provincial views more inclusively into federal decision-making rather than depending solely on the processes of executive federalism.

To achieve this reform may require elections to the Senate by a different electoral process than that of the House of Commons, but also a more rational basis of representing regional and provincial interests and an adjustment of the Senate's constitutional powers to avoid deadlocks. One possibility is along the lines proposed in the Charlottetown agreement. This is not the place to go into that prescriptive detail.

Reform requires looking not only at the method of selecting senators, but relating this to the role, functions, and powers of the Senate within Parliament. While such full reform is urgent for the welfare of Canada as a federation, it will require constitutional amendment, difficult as that may be, to redefine not only the method of electing senators but also the basis of representation and powers of the Senate.

Piecemeal reform by stealth, unrelated to the broader functions of the Senate, such as proposed by Bill C-20, not only does not go far enough, but it is even risky and dangerous insofar as it does not take into account its likely effect upon the relative role and powers of the Senate.

Thank you.

[The Chair, Liberal, Albina Guarnieri]

I call the meeting to order. Good morning, everyone and welcome to our witnesses.

Pursuant to the order of reference of Wednesday, February 3, 2008, the committee will resume its study of Bill C-20.

Today, we are fortunate to have three professors as witnesses.

Today we are joined by a delegation from Kingston, Ontario, the old capital of Upper Canada. We have Ronald Watts, professor emeritus at Queen's. He's a former director of the Institute of Intergovernmental Relations and president of the International Association of Centers for Federal Studies. As we all know, our federal system needs a lot of study these days, so welcome.

We have Richard Simeon, by way of video. Mr. Simeon was also a professor of political studies at Queen's and was director of both the school of public administration and the Institute of Intergovernmental Relations. Among his many national and international achievements is his publication, Small Worlds: Provinces and Parties in Canadian Political Life. We always say it's a small world here on the Hill, so we're fortunate to welcome Professor Simeon.

We have with us Andrew Heard, the author of many publications, including Canadian constitutional conventions: The marriage of law and politics. Of course, around here lately, the two have been on trial separation. Welcome.

Without further ado, we'll begin with Mr. Watts.

[John Whyte]

Madam Chair, with respect to Ms. Fry's concern about provincial objection, there would be the general concern that arises around the central accommodation of Canadian federalism being altered unilaterally.

The very specific concern is to remember that clause 13 of Bill C-20 allows for consultations to occur in the context of a provincial general election. One can imagine a province establishing a general election and having it, so to speak, hijacked by the federal Senate election—a bigger, louder, more weighty election than anything the poor province was trying to pull off. That would be unhappiness. We can predict provincial push-back on that very pragmatic basis as well as on the more theoretical basis.

As for a reference to the Supreme Court of Canada, I think one could just ask them the question: Is it within the legislative competence of the Parliament of Canada to enact legislation that establishes non-renewable term limits for senators and that bases appointments to the Senate on an electoral process taken prior to appointment? That would get to the heart of the issues we're discussing today, and they would give you an answer. It's precise enough, I think, and as I say gets to the heart of it.

[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.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you very much, Madam Chair.

I always find it extremely interesting to listen to all the opinions we get from legal scholars, none of which seem to agree with each other in many instances.

That aside, we heard from Mr. Hogg, who very clearly fixated on the letter of the law. I found that interesting, because if you view the law as having a spirit--and courts tend to interpret the law as not based purely on the letter, but on the spirit--then the problem here is that if the provinces were to be involved, or if they were not to be involved, to get around the provincial involvement you wouldn't have to challenge the Constitution. Therefore, this is doing that. This is suggesting that.... We're speaking about certain elements of politics, but you have to bring politics into the issue because it is changing a major institution and the way it functions.

The politics of the thing would say that we do not have to listen to the voter. I am using the voter as an advisory committee, so to speak. Now, provinces may get very involved in an election and therefore may not approve of the fact that this bill is not transparent and seeks to get around the Constitution by stealth--some may think it's a good thing and others may not, as you have all rightly pointed out--and therefore provinces may challenge the validity of the election, the validity of the way the selection occurred, and you could have all this debate and argument that could create a huge firestorm in this country. Is that what we really want?

A bill should be transparent. It should say not only what it wants to do in letter but also what it wishes to do in terms of recognizing the spirit of the law.

Given that on July 20, 2006, the Council of the Federation issued a communiqué endorsed by all provinces and territories and asserting the principle that the Council of the Federation must be involved in any discussion on changes to important features of key Canadian institutions such as the Senate and the Supreme Court, and given that this is not being done because there is no consultation, then we could face that as well; the provinces will feel they were slighted, and so will the Council of the Federation. That's a very recent decision.

The Canadian Bar Association made a suggestion. I would like to know what you think of the suggestion, and if you think it's a good idea, what questions would you put? They suggested that Bill C-20 go to the Supreme Court for the Supreme Court to decide whether it is constitutionally valid according to the spirit and the letter of the Constitution. If you think that should be done and if governments are transparent they would have no problem doing that because then they would be proven to be right or accept that they are wrong, what are the questions you would pose to the Supreme Court?