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.

[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.

[The Chair, Liberal, Albina Guarnieri]

Seeing quorum, I call the meeting to order.

Pursuant to our order of reference of February 13, 2008, we will continue our study of Bill C-20.

Today we are fortunate to welcome a witness who knows Ottawa very well.

Benoît Pelletier was associate dean and professor of the year at the University of Ottawa Law Faculty, where he obtained a master's in law. He then obtained his PhD from the Université de Paris in 1996. Mr. Pelletier is the Minister of Canadian Intergovernmental Affairs for the province of Quebec. He is also responsible for Indian Affairs and appropriately, the reform of democratic institutions.

Thank you for your patience. We had to hold a vote today and that is why we are starting a little bit late. That being said, I would like to invite Minister Pelletier to make his comments.

The floor is yours.

[Roger Gibbins]

They came very close on the free trade legislation, the GST, and others.

In the back of my mind is the danger of us getting into that confrontation with the existing Senate, because we have such different partisan distributions in the two houses. So I think there are some real risks.

If I were king for a day, I would like to have a House of Commons elected on the basis of representation by population, and get rid of some of the distortions we have right now as we try to accommodate regional representation within the House. It gets awkward. I would like to have a tie-breaking mechanism that gives additional weight to the House of Commons, because I think it reflects the most crystal-clear expression of the democratic will of the people. You want to get that right.

It requires a change from the status quo. People assume now that the Senate doesn't have power and legitimacy. It doesn't have legitimacy, but it does have power. I'd like to strengthen the legitimacy of the Senate but constrain its power. I think that can be done. There are mechanisms for doing so. I don't shy away entirely from the notion of deadlocks, confrontations, and so on, because democratic government tends to be messy. It's not clear-cut, but we have to sort those things out.

I come back to the responsibilities of this committee, as I see them. The questions that have been asked today that I have confronted seem to be extraordinarily important and thoughtful ones. These are not trivial matters that have been raised by people. I would hate to see the discussions shut down at this point by the committee, rather than pushing us—Canadians, the government of the day, whoever—to begin addressing those questions in a thoughtful fashion.

How you do that as a matter of parliamentary procedure is something I don't know. But rather than slamming on the brakes, I would prefer to raise those hard questions and try to think through a mechanism by which they can be answered. Because they are important questions, and Canadians would feel you were negligent in your own responsibilities if you went ahead pell-mell, without raising those questions and thinking through a mechanism by which we might be able to answer them. All those answers won't be found in Bill C-20 itself.

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

There are two things, Mr. Gibbins. First, you said earlier that we have to start the process, and as we go along we'll get the process to be better and better. I agree with that, but if I look at what we're doing here as a legislative committee, we are starting the process. In fact, the bill we have in front of us is that first step toward reforming the process. But our task as members of the legislature is to look at that bill and make the process already better at this level. That is why we're looking at the details of the bill. I can see that what we're doing falls in step with the kind of thinking you've been exposing to us, in terms of les grandes lignes, if you like. In our thinking, we have to take into consideration all the questions that have been asked here today and on the other days.

We've talked a lot about how you become a senator. But once you have become a senator, once that new Senate is elected, or whatever is done, and all the senators are sitting in that new red room, what is their relationship to the House of Commons? How do you avoid having two groups with the same amount of power jostling one another? What powers do you give to one that you don't give to the other? One necessarily has to supersede the other, it seems to me. One has to take precedence over the other, otherwise you're at a deadlock. It's one of the problems the United States have in their legislature.

Seeing that there's nothing in Bill C-20 to give us an indication of where the Conservative government wants to go in that, do you have some ideas on the relationship between that new Senate and the House of Commons?

[Roger Gibbins]

My understanding of how this electoral system would work is that if you had a preferential ballot and all 24 Ontario senators were elected at once, you would be assured of election if you received just over 3% of the popular vote. That's a very low threshold, so it wouldn't squeeze out the small communities.

Small communities would get into more trouble if you increased that threshold by having a smaller number of senators elected. It's like the issue of representation by population and proportional representation systems. Where do you want to set the threshold? Do you want it so you can get elected to the Ontario Senate with 3% of the vote? Or do you want a threshold to be somewhat higher?

It depends on your definition of democracy. Do you want those thresholds to be radically different across the country, where you can be elected as an aboriginal candidate in Ontario with 3% of the vote, but in Saskatchewan it takes 12% or 14% of the vote?

These are the design details that I think are hinted at in Bill C-20 but are not fully explained. To my mind, they're important decisions to be addressed. They're not incidental.

[Roger Gibbins]

That's a difficult question. Let me begin with the one I think is the most important--I'm not suggesting the others are not important--and that's figuring out what the appropriate size of the senatorial districts would be.

My concern with districts that are represented by a single senator is it doesn't provide a lot of opportunity for an electoral system to break up some of these large blocks.

To take an example, if Alberta had six Senate districts, each one electing one senator, we would get this uniform partisan representation from Alberta we have in the House of Commons.

If you have three districts or three senators per district, under the electoral system that is being proposed here, you would guarantee those three elected senators would not all be from the same party, unless Alberta was so overwhelmingly in public sentiment in that direction, which we're not.

So getting the size of the constituency right is very important, and that's what we haven't shaped up, as I read it, in Bill C-20.

[Roger Gibbins]

We can go a long way in moving towards an elected Senate without having the formal consent of the provinces. We can go a fair distance, as Bill C-20 does. However, on the distribution of the Senate seats, we need the consent of the provinces. There are hard constitutional constraints on what can be done without the consent of the provinces.

This is the trump card the provinces play. To use a baseball analogy, you can get to first base by yourself, but you can't get to second without bringing the provinces in. So the question is, when do you bring the provinces in? I think you bring them in after you have the process going. People could well differ on that assessment.

[Roger Gibbins]

To me it's pretty clear where we want to go on this. We want the same norms and conventions that apply to electoral financing in the House of Commons to apply in the Senate. It doesn't seem to be overly difficult to figure out how to get there.

The catch is that, since Bill C-20 would allow the election of senators in conjunction with provincial elections, it's not clear whether the federal financing legislation would apply. The provinces are not wildly out of line with federal legislation on this, but this is one of the soft points. If we rely on provincial elections, we're getting beyond the ability of Parliament to set election financing. That's why I think that in the long term provincial elections are a bad alternative.

But this committee would do well to tighten up what may be financial loopholes in the existing legislation. If they're closed, so much the better.

[Roger Gibbins]

The small step is that the Prime Minister will now, under Bill C-20, accept advice from the people of the provinces rather than from his own conscience, advisers, or whatever. To my mind, that's a very fundamental change.

The difficulty, and I think an area where this committee may well have an important role to play, is getting through a transition period. As I mentioned, I can think of electoral systems that would work very well for a lot of the concerns that have been expressed in this room, but in the short term it will be incomplete and messy.

Quebec, incidentally, poses a particular problem, and probably not in a bad way, because Senate constituencies are specifically defined in the Constitution, whereas they are not for the other provinces. Within Alberta you could have an election for all six Alberta senators at once, but it's not clear to me how this would take place within Quebec, with constitutionally defined senatorial districts. So for Quebec there is some hard work to be done.

Bill C-20 also provides an important olive branch to the provinces, in that it proposes, if I read it correctly, that the elections would be held either at the same time as a federal election or at the same time as a provincial election. There are supporters of the triple-E movement in my province who are very adamant that the elections should be held at the same time as provincial elections. Personally, I think that's the wrong way to go, but I can see us moving forward where we retain some of that distinction, where some of the elections are held nationally and some are held provincially.

As we work through how to make this sensible and sellable within Quebec, there are a series of design issues that I think offer some flexibility.

The last point.... I'm so hesitant to use terms like “back door” or “change by stealth” and so on, because it makes it seem illegitimate in some way. Yet I look at what has been a stalemate on Senate reform, with no movement, and I think there is an opportunity for some creativity here, some imagination, some ability to sort of get this discussion going.

I've been talking about Senate reform issues for 35 years as an academic, and I would like to think that before my death there will be some modest movement. I like to think that within my children's lifetime there would be some modest movement, but I'm not sure about this. If the Senate were working well, I wouldn't care, but I don't think it is working well, and therefore I do care.

I'm sorry, that's a long answer to your question.

[Pauline Picard, Bloc, Drummond, QC]

Welcome, Mr. Gibbins.

I am in favour of the abolition of the Senate. I do not believe in a second chamber. I believe that the House of Commons is capable of taking charge of its own responsibilities.

You stated earlier that Bill C-20 was a small step in the right direction. You however see in it elements that to your mind are inconceivable. You stated that after the holding of an election for senators, the Prime Minister could decide to snap his fingers at democracy and appoint someone else. This, to your mind, is inconceivable. You say that we are attempting to do something through the back door. Most constitutional lawyers have told us exactly the same thing. You also underscored the fact that the provinces would not be consulted. In the end, with Bill C-20, no one would be consulted; legislation devised for Lord knows what would simply be imposed. Furthermore, it will be very difficult to enforce.

What is that small step on the road to reform that Bill C-20 offers and that you mentioned earlier?

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

Across this country, if you bring up Senate reform, you're certain to get an opinion. Whether it's in a bar or in a church basement or wherever you might be, you're going to get a strong opinion. In my time in this place, I've never got the opinion, “Gee, I like what we have”. I think that's pretty safe to say.

You've already stated that change is what needs to happen, that it's the start down the road to the change, that the public demand is there and the people are certainly saying that what we have isn't right.

You were just asked some questions about appointments and that being the method to maybe get the best representation in the place. Well, I'll tell you, sir, that the largest complaint I hear is that people are appointed to the place. That may be what Bill C-20 really does--one of the best pieces is trying to fix that.

The public demand is there. You said we must start the change, even a little bit. We've got to start down the way, and then we might have the provinces stand up and take notice and see that the change is happening and they'd like to be part of it. I like the thought process of doing that.

I'm not certain that the public demand is from the premiers. That's not what I'm hearing. I'm hearing the public demand on the street. So I agree with you that starting the change is maybe the best way to go.

Maybe I'll stop there and ask you where we are, but I also loved your thought that our two choices are to wait for the implosion to absolutely happen of what we have or to actually start down the road of change and get going, and that change itself will bring on further change.

I'll leave that and let you speak to what I've said.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

First of all, Dr. Gibbins, I thank you for being here. I've gone through a couple of meetings with constitutional experts, and it's a breath of fresh air to hear someone attacking this from a different side, a more popular side.

I have to agree with some of what you've said, and I'll try to bring it together into a question. You've certainly said there's strong public support for what Bill C-20 is trying to do. If I can quote you, you may have been incorrect that it's not talked about in the bars on the weekend. Maybe we attend different bars.

[Roger Gibbins]

Those are good questions.

The Prime Minister at the present time takes advice from who knows where when he makes appointments. We have no idea who advises him. We have no idea if he accepts or rejects the advice. It's an entirely internal process in the head of the Prime Minister. We look at the results. We applaud some and condemn others, and we have no idea what the process is.

I think it is inconceivable--and I can't underscore that more--that a Prime Minister would hold or cause elections to be held and then reject that advice. As a convention, this sinks so quickly into the Canadian set of expectations that the Prime Minister would be bound. One of the constitutional arguments made about this is that the Prime Minister would be bound. You can't have it both ways. The Prime Minister is either bound by an electoral process or not. I think for better or worse, the Prime Minister would be bound in this way.

So the prospect of an election--and I'll use that term advisedly--being held and then the Prime Minister ignoring the result of that to me is remote at the outset, and rapidly becomes inconceivable as the convention sets in. That doesn't concern me.

The back-door argument is certainly more troubling--about why the provinces are not being pulled into this at the outset. I guess there are two responses I would make to that.

If the Senate was functioning well and we did not run what I consider to be a very real risk of confrontation between an elected House and an appointed Senate because we have such partisan imbalances in the two, then I would say let's be as slow-moving about this as we want.

I don't think it is working well at the present time. The way to bring the provinces to the table is to start the process in some way. This is again where I think Bill C-20 catches your interest. If you tell the provincial governments we're not going to do anything on our own initiative and we're going to wait until they sort of rally around and come up with something, nothing is going to happen.

[Roger Gibbins]

The single transferrable vote system, and indeed most forms of proportional representation, if we were to go that way, work least well.... Pardon me. The smaller the constituency, the worse they work. If you have a single transferrable vote and you're only electing one member, you get basically the same outcome--not exactly, but similar.

One of the things that's unclear in Bill C-20, at least in my reading, is that it doesn't define what the appropriate collection of constituencies would be for the Senate election. It doesn't define, because we can't define it at this point, what the number of elected senators should be and whether they should be at one time or another. We're going to have a phase-in period where none of this is going to work terribly well.

The basic point is that if you want to ensure diversity of representation in the Senate and that we don't replicate the kinds of regional blocks we get in the House of Commons, then you need a reasonable number of people elected at the same time in the same constituency. Getting there in an incremental fashion is not straightforward. I don't think the electoral system proposed in Bill C-20 will work flawlessly from the get-go. It won't. But I think it will create the opportunity to begin to get this right.

I also want to note--and this really goes back to the question on a referendum--that our Constitution does not require that major constitutional changes be put to the people. It simply requires the consent of the provinces--either all, or seven. However, my guess is that the Charlottetown referendum has set more of a constitutional precedent than we realize. In fact now that we've put one major constitutional package before the people, I suspect that in the future, no matter what the constitutional change might be, if it's major and if it's significant, governments will be compelled to go back to some sort of popular consent. I think we've made a decision in the Charlottetown referendum that we will not go back on; I don't think we can go back on it.

[Roger Gibbins]

My understanding—and I don't speak with a great deal of insight—is the western provincial governments have not yet waded into this.

If you want to get a general sense of the political landscape in western Canada, I would describe it in the following terms: a commitment by provincial governments to move ahead of Senate reform, but not with a whole lot of enthusiasm. At the public level, there is very strong public support, but this is not a top-of-the-mind issue, so it's not something people are marching in the streets about. It's not an acute issue. If you put it to the test, if you poll people, if you ask people, you find very strong support, but it's not something people are talking about in the bars on the weekend. It doesn't have that high saliency at the present time.

My sense of the landscape is that this specific bill, Bill C-20, has not yet sunk into regional discussion within the west. That would be my sense, anyway.