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.

[Professor Peter Hogg, Scholar in Residence, Blake, Cassels and Graydon LLP, As an Individual]

Thank you very much, Madam Chair, and thank you, Professor Gélinas.

My view is not very different from that of Professor Gélinas, and I will attempt to speak to the particular point that he made before I finish, but let me set out my argument, which is pretty straightforward.

I say that Bill C-20 would be a valid act of Parliament, and it escapes the strictures of paragraph 42(1)(b), the fact that it requires an amendment to change the method of selecting senators. It avoids that because it does not literally amend section 24 of the Constitution Act, 1867.

It could be argued—and Professor Gélinas did not argue this—that Bill C-20 is, in pith and substance, really an amendment to the method of selecting senators and is therefore unconstitutional under paragraph 42(1)(b). My view is that the Supreme Court of Canada would not accept that argument, and I say that because the appointing power of section 24, which only speaks to the Governor General, does not now impose any restrictions on the consultations or considerations that the Prime Minister might take into account before recommending an appointment to the Governor General.

For example, right now the Prime Minister could, if he wished, commission an informal poll as to the wishes of the electorate with respect to an appointment from a particular province. The Prime Minister could right now, and in fact has done, respect the choice of the electorate expressed in a provincial election, as we know has been done in respect of appointments from Alberta, where those elections have been held.

So all Bill C-20 does is make a formal consultation process available to the Prime Minister, should he choose to take advantage of it. As you will know, the Prime Minister does not need to take advantage of the consultation process if he doesn't want to; the bill leaves that as a matter of discretion in the Governor in Council. If the Prime Minister does order the formal consultation process to take place, he does not have to respect the results in making recommendations for appointments.

I fully recognize—and this starts to get me into the area where Professor Gélinas is—and obviously a court would recognize that after Parliament has established the complicated process proposed by Bill C-20, no Prime Minister is likely to continue to make appointments in the old way. But I say that is a truth of politics, not a truth of law. It might be different if Bill C-20 compelled the Prime Minister to follow the statutory consultation process and then compelled him to make appointment recommendations in accordance with the outcome of the process, but as we know, Bill C-20 doesn't do either of those things. Bill C-20 simply gives the Prime Minister a vehicle for consulting the electorate, but does not require him to use it and does not require him to respect the outcome if he does use it.

Getting to the corner of Professor Gélinas' point, section 24 has never attempted to control the decision-making process that precedes the decision of the Governor General to make Senate appointments. So if it did turn out that prime ministers now automatically use the process, and if it came to be accepted, as Professor Gélinas suggests might be a possibility, that this was really a convention, that this ripened into a new convention that appointments would always be made by using this admittedly optional process, section 24 would not speak to that. Section 24 says nothing about the conventions that precede an appointment, and conventions can change in various ways over the years. If this ended up causing a change in the convention, section 24 would simply operate in the way it has always done. That is to say, whoever by convention is supposed to make the recommendations of the Governor General, the Governor General would then go ahead and make the appointment.

Let me raise one other point that I know has been at least mentioned in the proceedings before the committee. The point is this. In the upper house reference, the decision of the Supreme Court of Canada in 1980, the Supreme Court said that the fundamental features or essential characteristics of the Senate were outside the unilateral power of Parliament.

I know it has been suggested, and now is still the case, that any bill--this was suggested, for example, with respect to the term limit bill--that arguably altered the fundamental features or essential characteristics of the Senate would be outside Parliament's power. I just want to briefly answer that point, because I'm sure it will be part of your deliberations.

That upper house re-decision was a decision in 1980, before the Constitution Act 1982. It was the answer to a series of questions that were put to the Supreme Court of Canada by the government of the day about the extent of Parliament's power to change the Senate, including to make provision for elections to the Senate. The court gave very general answers to those questions--it wasn't asked anything very specific, and it didn't have a bill placed before it. The court's answers were particularly concerned with the protection of the provisions respecting regional and provincial representation in the Senate. Of course, Bill C-20 doesn't touch those.

The important point is that that case is no longer relevant. When it was decided in 1980, the Constitution Act 1867, which was the only authority then for making changes to the Senate, said nothing about Parliament's power to enact changes to the Senate. So the court was constructing some general rules in the face of a Constitution that said nothing. Of course, that has now been overtaken by the Constitution Act 1982, which now specifies expressly what has been withdrawn from the unilateral power of Parliament. One of those matters, of course, as we have seen, is “the method of selecting senators”. Another is “the powers of the Senate”. Another is “the number of members by which a province is entitled to be represented in the Senate”. Another is the “residence qualifications of senators”. They're all set out in section 42, the 7/50 provision in the amending powers.

Those explicit provisions are now the governing constitutional law with respect to changes to the Senate. I say the only one that is potentially relevant is the method of selecting senators, and I've explained my view that that provision does not cover Bill C-20.

My conclusion is that the Parliament of Canada does have the power to enact Bill C-20, and if it were enacted, it would be a valid act of Parliament.

Thank you, Madam Chair.

[Fabien Gélinas, Associate Professor, Faculty of Law, McGill University, As an Individual]

Thank you, Madam Chair.

Good afternoon, everyone.

I would first like to thank the committee for inviting me to participate in your work in this way. It is an honour and a pleasure. Well, maybe we will see about the pleasure later.

I was not able to prepare a written report, for which I apologize, but I did bring some notes that I gave to the clerk to facilitate the work of the interpreters and, as a result, the work of committee members.

We are here to shed light on Bill C-20, An Act to provide for consultations with electors on their preferences for appointments to the Senate.

In order to prepare a sufficiently big picture for the committee, I followed the evolution of Bill S-4, which is now Bill C-19, dealing with the length of senators' terms. In so doing, I was also able to read the comments of Professor Hogg who is here with us and to whom I extend greetings.

The two bills on Senate reform remind me, in a number of respects, of the two best-known lovers in western theatre, Romeo and Juliet. We may ask ourselves whether they are really meant for each other. Are they ever going to end up together anywhere but in the great beyond? Another question comes to mind. Will the death of one, real or feigned, cause the death of the other? Questions like that arise. And everything is still possible at this stage.

So I propose to focus my introductory remarks on Bill C-20 considered separately and apart from the other bill, and to broaden my comments during the discussion if the members of the committee consider that useful.

As a constitutional lawyer, I naturally asked myself if the bill is valid constitutionally. In legal terms, the answer seems quite simple. The bill does not seem to change any provision of the Constitution within the meaning of section 52 of the Constitution Act of 1982. The constitutional amending procedure in section 38 of the act and those following does not come into play. It simply does not apply.

Nevertheless, in our political system, everyone can appreciate the limits of the legal provisions that are enshrined. It is clear that passing the bill may well have a major impact on the functioning and the balance of our political institutions. The impact will be felt by the normative, or conventional, effect of the Constitution, the conventions of the Constitution that are unwritten, and not in the law, but that nevertheless are binding.

Since we are talking about choosing senators, the problem here, in summary, comes from section 24 of the Constitution Act of 1867, which gives the Governor General the exclusive legal power to appoint senators. Section 24 makes no mention of the Prime Minister, however often it is informally said that senators are appointed by the Prime Minister.

We know that the conventions of responsible government establish that Governors General exercise most of their powers only with the advice of their ministers. The conventions stipulate that the special power described in section 24, the power to appoint senators, is exercised with the advice of the prime minister. This is one of the so-called special prerogatives.

The legal power enshrined in the Constitution belongs to the Governor General, therefore. Because of a constitutional convention, he or she exercises that power only in accordance with the advice of the prime minister. The convention exists because of the principle of responsible government, which, in the British parliamentary system, is a means of ensuring the operation of democratic principles.

The Bill under study organizes the mechanisms of an optional consultation process that might well look like an election for senators. These provisions in no way require the Governor General to appoint the senators receiving most popular support at the end of the consultations. They do not even require the Prime Minister to accept the result of the consultation when formulating his advice to the Governor General. In fact, no requirement is placed on the Governor General or even on the Prime Minister. There is therefore no impact on section 24 of the Constitution Act of 1867.

As I have already mentioned, the bill may well have a significant impact on the conventions of the Constitution. The current Prime Minister is almost obliged, politically, to be bound by the results of the consultation. If he so declares himself, either before or after the legislation is passed, and if he then moves to make appointments as a result, he is demonstrably laying the foundation for a constitutional convention. This would be confirmed, in my view, only if his successor saw fit to be bound by the same rules.

The requirements for a convention to be established are generally considered to be precedents, a feeling of obligation on the part of the political actor involved, and a reason for the rule. What I would like to highlight here is this reason for the constitutional norm that is the subject of our attention.

There is a reason for the conventional rule that transfers the Governor General's power in section 24 of the Constitution Act of 1867 to the Prime Minister, and the reason is the democratic principle. The conventional rule apparently sought here, to transfer the power of elected people—the power accorded to the Prime Minister acting with the confidence of the House of Commons—to voters, that is, the people who would be consulted, is the democratic principle too. The concept of democracy is also described in the first paragraph of the preamble to the bill. These are two different concepts—that is what I want to underline here—or at least two very different ways to put the democratic principle into operation. The first takes the familiar and well-paved road of responsible government in the House of Commons. The other cuts a largely uncharted path through our political system.

The Supreme Court has already had the opportunity to study the protection provided by constitutional law to the rules of responsible government. The principle of responsible government is definitely, but somewhat uncertainly, enshrined in the Constitution and protected from unilateral change by Parliament, or by a provincial legislature in the case of an amendment to a provincial constitution. This protection is guaranteed, both federally and provincially, by section 41 of the Constitution Act of 1982 that, as you know, requires unanimous consent to amend the offices of Governor General and Lieutenant Governors. This is a way to protect the principle of responsible government under the Constitution. In the case of the Senate, this protection is guaranteed in section 42 of the procedure for amending the constitution, which protects section 24 of the Constitution Act of 1867 from unilateral amendment.

This leads me to suggest that, if the bill went any further in limiting the Governor General's decision-making under section 24, it would move into an area of constitutional uncertainty.

But, in my view, this is not the case here. If we consider the bill in isolation and in its current form, I believe that no fault can be found with its constitutional validity.

Politically, however, I would say to sum up that the idea that lies beneath the intended reform deserves serious attention. Although it claims to uphold the democratic principle, it introduces a foreign element into our system whose consequences do not seem, to me at least, to be sufficiently clear.

Thank you.

[The Chair, Liberal, Albina Guarnieri]

I'd like to call the meeting to order.

Pursuant to the order of reference of Wednesday, February 13, 2008, the committee resumes its study of Bill C-20.

We're fortunate to be able to consult with two able scholars and residents here today in committee.

We are joined by Monsieur Fabien Gélinas, associate professor, Faculty of Law, McGill University; and Mr. Peter W. Hogg, scholar in residence, Blake, Cassels and Graydon.

Thank you and welcome.

Mr. Gélinas, we'll begin with you. You each have 10 minutes, and we'll be generous with allotting you enough time to make your comments. Thank you.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I think the Committee should consider doing so. In fact, I want to suggest that the Commissioner of Official Languages be invited to appear before the Committee, Madam Chair.

In the Constitution, we are dealing not only with what is written in black and white, but also all the written and unwritten principles associated with it. One of the principles outlined in the secession reference relates to the protection of minorities. If Bill C-20 ignores minorities, in my opinion, an official constitutional challenge should be launched against the bill on that basis. I'm not talking about the constitutional challenges that New Brunswick, Quebec and Ontario are preparing. I think it's important to clarify that for the benefit of those closely following this issue.

Mr. Mayrand, I have two questions. First of all, would it be possible for provincial governments, based on the wording of the bill currently before us, to call by-elections in an attempt to influence the result in one region or another? Would it be possible for provincial governments to call a provincial election or by-election when a consultation is underway?

[Marc Mayrand, Chief Electoral Officer, Elections Canada]

Thank you, Madam Chair.

I'm pleased to appear today to speak on Bill C-20, the Senate Appointment Consultations Act.

Bill C-20 represents a significant change from at least three perspectives. First, it potentially represents a major reform of Canada's parliamentary institutions by creating a method of consulting Canadians on the recommendation for the appointment of senators. Second, it represents a significant electoral policy choice through its proposed use of a single transferable voting system for the first time at the federal level. Finally, the bill can be seen as raising novel administrative and operational issues related to the conduct of a democratic consultation in conjunction with a federal or provincial electoral process.

My focus today will be on the latter perspective, the administrative and operational issues raised by the bill.

My intent is to raise some matters that the committee may wish to consider in its discussions respecting the bill. In addition, my office has identified other areas that the committee may wish to review for possible amendment.

With your permission, Madam Chair, I will leave a list of all these issues with the members of the committee at the end of my appearance. Since I will not discuss them, I would ask that they be entered into the record of the deliberations of the committee. Thank you.

There are three key matters that I wish to raise for the committee's consideration. First, I will point out the substantive challenges that could be encountered if a consultation were held in conjunction with a provincial election. Second, I would like to discuss the complex problem of harmonizing the existing political financing regime in the Canada Elections Act with that created for Senate consultations. Third, I wish to share with you my concerns about the operational feasibility of the coming into force provisions of the bill.

Before I do that, however, given the novelty, in Canada, at least, of the STV voting system, I will give a very brief description of this voting system.

STV allows electors to rank the candidates in multi-member districts. They do so by indicating their preferences—one, two, or three, and so on—on the ballot beside the names of the candidates. The result is determined through a series of counts. At the first count, candidates who have collected more than a specified quota of first preference votes are immediately selected. This quota is based on the number of available seats and the number of valid votes.

In second and subsequent counts, all votes of elected candidates in excess of the quota are redistributed according to a weighted formula to the next available preference on the ballots.

If after any count no candidate has obtained the quota, the candidate with the fewest ballots is eliminated, and his or her ballots are redistributed to the next available preference. The process continues until all available seats have been filled.

The application of the process is not as easy as its description and there are many complicating details, but what I have provided here is a simple overview of how STV works.

Going back to areas of concern, the first matter I would like to discuss is the possibility that a Senate consultation may be held in conjunction with a provincial election. If such a consultation is to take place, the Chief Electoral Officer is authorized by the bill to enter into an agreement with the provincial electoral body. In that case, he would be required to adapt an element of the Senate Appointment Consultations Act for the purposes of holding a joint event.

If an agreement cannot be reached, two separate processes would be held on the same day in different polling locations, using different workers and applying different rules. This does not appear to me to be a viable option, and it would likely create elector confusion and frustration.

It would therefore be essential to reach an agreement with the provincial electoral body. To achieve such an agreement, it is very likely that the province would require that the Senate consultation run according to rules that are as close as possible to the provincial election rules, including those regarding residency requirements, identification at the polls, polling day registration, vote counting, and political financing.

For example, as no province currently uses STV, such a consultation would likely not take place using that voting system if held during a provincial election. This would also mean that the Senate consultation process could be conducted differently depending upon the province in which it is held. This is something that may be acceptable from a policy perspective and on which I express no opinion. However, decisions as to how to adapt important federal rules to allow their implementation by provincial authorities could result in controversies and possibly legal disputes. As I said earlier, I do not believe this is a viable solution.

Rather than providing for a regime that requires a complex mixing of federal and provincial electoral laws, it may be better to provide in the bill that a consultation process be held according to federal rules, except in a case where a province has legislation that creates a process for a consultation. If such a provincial statute exists, such as Alberta's Senatorial Selection Act, the consultation would be conducted by provincial electoral authorities in accordance with provincial law.

The second matter I wish to highlight is the political financing regime created by the Senate consultations and the impact those rules may have on the existing political financing provisions found in the Canada Elections Act.

Much has been done in the bill respecting the challenge of harmonizing regimes for the two events that will, in many cases, take place at the same time. For example, many of the financing rules in Bill C-20, including those related to the disclosure of financial transactions, would mirror those imposed on candidates during an election campaign. In addition, the bill seeks to prevent contributions to a Senate nominee from flowing into the electoral process by providing that surplus funds of nominees must go to the Receiver General.

However, there are some areas in which the financing regime proposed by Bill C-20 may not be in harmony with the existing political financing law. If it is the will of Parliament that there be no spending limits for the campaign of Senate nominees, as proposed in Bill C-20, it would be important to minimize the impact the proposed financial regime could have over the one governing elections.

Spending by nominees could impact the political financing regime in the Canada Elections Act in several ways. For example, the fact that there is no prohibition against a person being both a candidate under the Canada Elections Act and a nominee in a Senate consultation raises the possibility that unlimited spending under the Senate regime could undermine the candidate spending limits for a person registered as both a nominee and a candidate.

Similarly, there is nothing preventing a person who is running as a candidate in an election from registering as a third party in the Senate campaign. Doing so would allow for spending over and above the candidate's spending limit.

I also note that although, for the most part, the bill seeks to impose a distance between political parties and nominees, subclause 87(2) provides that registered parties and registered electoral district associations may transfer unlimited goods and services other than advertising to nominees. The capacity to pass goods and services to nominees again brings into question the efficacy of party spending limits.

Finally, difficult questions may arise as to the appropriate treatment under the two laws of spending by a Senate nominee who promotes his or her party platform. It is not my intention to suggest that the political finance rules of Bill C-20 must be the same as those of the Canada Elections Act. While we must recognize that perfect symmetry is not possible, Parliament may wish to ensure that the rules for Senate consultations do not have an unintended impact on the financing regime under the Canada Elections Act.

This appears to be the intent of the bill, and I would offer the following points for your consideration to stimulate discussion as to how best to achieve that intent:

(a) consider prohibiting a person from being a registered Senate nominee and a candidate in a federal general election at the same time;

(b) consider prohibiting a candidate from incurring advertising expenses as a third party in a Senate consultation held at the same time as the election in which he or she is a candidate;

(c) consider ensuring that the provisions relating to collusion and prohibiting various entities working together to circumvent spending limits are sufficiently strong in the bill and in the Canada Elections Act; and, finally,

(d) consider prohibiting all non-monetary transfers from registered parties and associations to Senate nominees.

A third matter I wish to raise today is the operational feasibility of the coming into force provisions, as provided in the bill. The requirement to prepare for Senate consultations will be a substantial undertaking which we will need to accomplish in addition to our ordinary activities, which include always being prepared for a general election.

New tools and systems will need to be developed to conduct the consultations and to support an electronic method for counting the ballots under the STV system. In addition, we will be developing training materials and an information and education campaign for parties, other participants and, especially, the voting public.

I anticipate that these problems can be dealt with and that the appropriate systems can be designed. However, I have concerns about the feasibility of doing so within the two-year period. We asked IBM Canada to conduct an external review of the technological developments required, given the implementation timeline provided for in Bill C-20. The firm concluded that a two-year timeline has an extreme risk of failure. On the other hand, it found that a three-year timeline for implementation appears achievable. A three-year coming into force period is therefore essential to Elections Canada to ensure the success of this endeavour.

The coming into force provisions also provide for an interim form of consultation that may be held in a period between one and two years after royal assent. An interim consultation would use a multi-member plurality voting system—that is to say, one in which electors do not rank nominees, but simply place an “X” besides the applicable number of nominees.

As such, Elections Canada would also be required to design systems and materials, and conduct voter education campaigns in preparation for this potential event, at the same time as preparing for the coming into force of the preferential balloting system. There would be a need to prepare for an interim consultation, even though there is no certainty that one would be held during the interim period. The resources required to prepare for one type of consultation would reduce those available for preparing for the full coming into force of Bill C-20.

In my opinion, the impact on readiness for other events, the confusion caused to electors and the cost of preparing for an event that may or may not happen in a one-year window, do not justify this interim method.

I would therefore recommend that the interim method of holding consultations be removed from the bill.

In addition to the three key matters already discussed, I wish to raise two other points for the consideration of the Committee—one, more encompassing, and the other, more technical.

The first relates to the fact that, in many instances, the bill states that key provisions of the Canada Elections Act shall apply to a Senate consultation with any adaptations as are necessary. For example, clause 46 states that the ordinary, advance and special voting provisions of the Canada Elections Act apply with such adaptations as are necessary. Clauses 95 and 96 provide that many of the political financing provisions of the Canada Elections Act apply to a Senate consultation with any adaptations as are necessary.

I understand and agree with the approach that many elements of the Canada Elections Act are to apply to Senate consultations. To the extent that the rules of the Canada Elections Act are well known and respected by participants and Canadians at large, the choice to apply the same rules to a Senate consultation is required and will simplify the administration of both types of events. However, the nature of the instrument by which these rules will be made raises concerns. Indeed, the bill does not provide for any legal instrument, such as a regulation, in which these fundamental rules, as adapted to the circumstances of a Senate consultation, will be made known.

A relatively simple fix to this problem is the approach taken in the Referendum Act. Section 7 of that Act gives the Chief Electoral Officer the authority to make a regulation adapting the Canada Elections Act for the purposes of a referendum. Once made, that regulation is referred to committees of both houses for their comments. The creation of a legal instrument codifying the rules applicable to a Senate consultation would reduce potential confusion or uncertainty. This is desirable for many reasons, but perhaps most important when one considers the matter of enforcement.

Indeed, the Commissioner of Canada Elections has raised concerns with me about the impact of the uncertainty engendered by the absence of a document that has the force of law, setting out the offence and its punishment in the context of a consultation. I therefore recommend that, if Parliament wishes the Chief Electoral Officer to adapt the Canada Elections Act for the purposes of a Senate consultation, a regulation-making power similar to that found in section 7 of the Referendum Act be created to achieve certainty in the law and ensure its enforceability.

The final point I wish to raise today relates to clause 33, which requires the Chief Electoral Officer to compile and distribute information about nominees in the form of an elector guide. The publication of this guide may, in some cases, oblige Elections Canada to become the arbitrator of its contents. There is a fine line between what is perceived as the mere provision of information, and what may be perceived as advocacy. Elections Canada's responsibility for publishing this guide may, therefore, affect perceptions of its neutrality. I would ask, consequently, that this responsibility not be entrusted to Elections Canada. To the extent that the publication of this guide is intended to reduce the costs a nominee faces in making his or her message known throughout the province, an alternative solution might be to provide a subsidy, such as reimbursement of this particular expense to nominees.

In conclusion, I wish to emphasize, once again, that the implementation of Bill C-20 is a significant challenge, but one that I am fully prepared to undertake. That said, the complexities of the proposal should not be underestimated. As this Committee is only beginning its study of the matter, and as the bill has been referred after first reading, I have not gone into details about technical drafting and implementation issues, or the costs of implementing this bill. I would, of course, be happy to come back to discuss these or any other matters when the Committee is more advanced in its study of the bill.

That concludes my remarks, and I would be happy to take your questions. Thank you.

[The Chair, Liberal, Albina Guarnieri]

I will call the meeting to order this afternoon.

Pursuant to the order of reference of Wednesday, February 13, the committee will resume its study of Bill C-20.

Thank you, everyone, for being on time. I know we will want to give the maximum time possible to learn from our special guests today.

We are joined today by a man who might well be preoccupied with preparation for another national consultation process, but today we are focused on the Senate, and we hope the presence of the Chief Electoral Officer of Canada will help us identify practical issues with this proposal.

Monsieur Mayrand is joined by a familiar face to those of us on Parliament Hill. He is joined by Diane Davidson, deputy chief electoral officer, and Monsieur Stéphane Perrault, senior general counsel and senior director. Welcome.

Without further ado, I will turn it over to Monsieur Mayrand.

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

I find it unfortunate that when we have an issue like this where it should be so easy for us to be at least respectful, we have one committee member who decides he has to use terms like “puppet show”. I don't know how that feeds into our trying to operate in a respectful manner. Unfortunately, it's increasingly how the standing committees operate. I was hopeful that perhaps a legislative committee wouldn't be subjected to that. My apologies to the witnesses.

I'd like to pick up on some of the comments Mr. Angus made. I've been here for almost 15 years. I'm a strong advocate for Senate reform--I've said this before--and I find it extremely disturbing that the fallback position for many of my colleagues from other parties always seems to be that if you can't go all the way toward an elected Senate--in other words, change the Constitution.... We know all the hurdles. Many of us, even if we weren't here, certainly viewed the country seized with the machinations of Meech Lake and the Charlottetown accord and where all that led, frustratingly so, in the end.

I find it disappointing that we can't view this, discuss this, and debate this as an improvement, because that's how I see it. It's a step in the right direction. It's not the whole enchilada, so to speak, but at least it would give Canadians some choice.

Mr. Angus asked how do we know that electors are going to buy into this and suggested that perhaps there was no benefit. From my window, I think they will buy in because they're going to be given some choice that they don't have now at all.

The default position is to go back to the system we have, whereby traditionally a Liberal prime minister appoints Liberals to the Senate and a Conservative appoints Conservatives to the Senate. If we want that archaic system in this country, that's what we can have. But I think Bill C-20 is an honest attempt to do what we can, respecting the confines of the Constitution. That's what I hear from the witness as well.

He asked, “How do we suggest the public would buy in?” I don't remember the exact numbers, but I think somewhere around 300,000 Albertans voted in a Senate selection there--far more than the 100,000 or so who ever voted for any single MP in a riding. We're lucky if we get half of the eligible voters out to vote any more.

I think this constitutes a good step forward, and it is a step toward democratic reform. We should try to discuss that within those confines.

I would like to ask the witnesses to comment further on this whole notion that somehow the public wouldn't buy in if they were given an opportunity. I think the experience in Alberta--and I don't think it would be dramatically different in other provinces--suggests otherwise.

[Dan McDougall, Director of Operations, Democratic Reform, Privy Council Office]

Thank you, Madam Chair.

We are pleased to be here today to discuss Bill C-20 — the Senate Appointment Consultations Act. We would like to review with the Committee the policy framework for the bill, as well as discuss the structure of the bill, and any details of this legislative proposal.

In the first instance, in order to set the context, I think it may be useful to start off with a brief description of what the bill does not do.

To start with, the bill does not provide for a process for electing senators. Rather, much like the Referendum Act, it sets out a scheme for consultations with Canadians, without binding the Prime Minister or the Governor General to the results of a consultation.

As well, as was discussed briefly with the committee when the minister appeared before you, neither does Bill C-20 amend the Constitution of Canada. Indeed, the bill has been carefully drafted so as not to affect the Governor General's power to appoint senators, the Prime Minister's prerogative to recommend persons for appointment to the Senate, the constitutional qualifications of senators, or indeed the role of the Senate as arbiter of the eligibility of senators.

However, what the bill does do is provide a bank of names of persons from which the Prime Minister may choose to make a recommendation for appointment to the Senate as vacancies arise. Persons appointed from this list will have the democratic support of voters.

The bill provides that a consultation normally will be held in conjunction with a federal general election. The Governor in Council can make an order for consultation, and the consultation process, which relies extensively on the Canada Elections Act, will be administered by the Chief Electoral Officer.

The bill provides that a consultation could also be held in conjunction with a provincial general election, provided that six months' notice is so given.

Bill C-20 provides flexibility as to whether and when to use a consultation, in how many provinces to hold a consultation during a federal or provincial election, and for how many places. The number of places is not determined by the number of vacancies in the Senate. Even if there are no existing vacancies in a province, a consultation may be held for the number of places specified in the order for a consultation. This flexibility may help to ensure that nominees are available to fill seats as they become vacant.

Canadians may register their nominations at any time with the Chief Electoral Officer. They do not need to wait for an order for consultation to be issued. A nominee must be 30 years of age or older, and must be a Canadian citizen. Of course, prior to being called to take up a place in the Senate, a nominee would need to comply with the other eligibility criteria that are set out in the Constitution.

Once registered, nominees may begin to accept contributions for their campaign. The rules governing contributions are based on the rules applicable to candidates for members of Parliament, as outlined in the Canada Elections Act, with some exceptions. For example, candidates for election to the House must wait until an election is called before they can issue receipts for contributions.

Given the different role of parties in the Senate, as compared to the House, political parties will have a limited role in relation to Senate nominees. The bill provides that parties may endorse a nominee, but may not endorse more nominees in a province than there are places specified in the order of a consultation. Parties will not be able to transfer funds to Senate nominees. There will be no Senate-only parties. To conduct advertising, parties will have to register as a third party, and parties will not control the order of nominees on the ballot, nor will candidates be grouped on the ballot by party.

Consultations will be province wide, allowing voters to indicate their preferences amongst all nominees in that province. The voter will be able to rank his or her preferred candidates as one, two, three, and so on, expressing as many or as few preferences as desired, across or within party lines employing whatever criteria are favoured by the voter. The designed principle of the bill is to provide as much flexibility as possible to the voter. Complementing that principle, the proposed voting system, called a single transferable vote or STV, is also designed to reflect as closely as possible the intentions of the voters.

The bill provides that, after counting the votes, a list of selected nominees for each province in which a consultation is held will be submitted by the chief electoral officer to the Prime Minister for his consideration. The bill also provides that the chief electoral officer must also publish this report, along with other details of the vote, in the Canada Gazette without delay.

In the interests of time, perhaps I could just highlight some of the other key provisions of the bill. There are extensive sections of the bill dealing with advertising and communications, with third-party advertising, with financial administration and, of course, a section dealing with enforcement.

As a general statement, these provisions are complementary to comparable provisions in the Canada Elections Act, taking care always to have the least impact possible on the actual functioning of that Act, and making the necessary adaptations of the provisions to reflect the nature of the process created by the Senate consultations bill.

Madam Chair, I thank you for the opportunity to appear before the Committee. We will now be pleased to take questions from the members.

[The Chair, Liberal, Albina Guarnieri]

I'd like to call the meeting to order.

Pursuant to the order of reference from the House of Commons of February 13, 2008, the Legislative Committee on Bill C-20 will now resume its study of the bill.

I would like to inform the committee that it shall reserve the last 20 minutes at the end of the meeting in camera in order to discuss internal matters, such as what has been done by the subcommittee on agenda and procedure regarding the list of witnesses, the upcoming calendar, and the adoption of the budget. Moreover, as everyone knows, the bells will start ringing at 5:15 sharp for votes. Therefore, we'll have between 80 and 90 minutes with our witnesses today.

I know all of you are eager after the Easter break, after consulting with your constituents about this bill. So I know you're eager to pose our Privy Council officials many questions. Please allow me first to introduce them.

We have as witnesses today: Dan McDougall, director of operations; Isa Gros-Louis, director; and Grégoire Webber.

Welcome. You have the floor.

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

I will let Ms. Bourgeois speak, but first, I would like to say two things. First, I appreciate and understand the point of view expressed by my colleague Mr. Kramp. Rather than tell us 10 times though, he could have said it once or twice. We understood him the first time. The same goes for all of my colleagues opposite.

Next, if I understand what Ms. Bourgeois is saying, since the motion was made in French, I am wondering if we could use the French text as the official version. Mr. Kramp has just referred to three words in the second paragraph, namely, “among other things”, which appears to be a rather loose translation. The French word “notamment” is an expression of what Ms. Bourgeois intended to say. I would like to use the French text for the official motion, since I believe that Ms. Bourgeois drafted it herself.

As to the amendment, yes, the minister did appear on numerous occasions, but as my colleague Mr. Holland has said, it is the only way for opposition members to speak to him directly, on the record. When we ask questions in the House, during question period or at some other time, the person who answers on his behalf is his parliamentary secretary, who is an elected member of Parliament.

When the Minister for Democratic Reform was here yesterday to speak to us about Bill C-20 on Senate reform, I asked him how someone could have been appointed by the Prime Minister. The minister was not elected. He ran in the riding of Laval—Les Îles, the riding that I currently represent in the House of Commons, he was rejected by the voters, and the Prime Minister appointed him to his position. After that, the senator even refused to run in a by-election, something that he could have done. This is the only place where we can direct questions to him.

I agree wholeheartedly with my Bloc Québécois colleagues that this person should appear before us to answer our questions. We have more questions for him.

[Peter Van Loan, Conservative, York—Simcoe, ON]

If you're suggesting that somehow there is a difference from today, then you're accepting the notion that the Senate doesn't have legitimacy today. But they do have all the powers that go with that, and those same kinds of impasses can exist.

The strange situation right now is that the resolution of an impasse, as happened in 1988, is by the democratic body seeking a dissolution and going to the voters for a mandate to make it clear and put some kind of moral pressure on the appointed body. That is a bit alarming in a democracy, that an appointed body could effectively force, hamstring, or tie the hands of the duly elected body and create that kind of impasse.

If you move forward with Bill C-20, in a situation where most senators are the product of a consultation process, at least the impasse you have that creates that situation is one that has a democratic body on either side. The solution would still be the same--seeking a dissolution in the House--but at least it would be prompted by others with a legitimate basis for their mandate.

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

Thank you, Madam Chair.

I think, in all fairness, this is an excellent discussion today and certainly a good kickoff, if I can call it that, to our deliberations about Bill C-20 and the future of the Senate.

I'm quite interested in the process that led the government to come forward with this bill. In particular, Mr. Minister, perhaps you could enlighten us as to some comments made earlier about the process for actually going about selecting senators, were this bill to come into force. You yourself were remarking earlier about how this differs from the first-past-the-post system, which most Canadians, and certainly most parliamentarians in the lower House, in our House of Commons, are familiar with.

Could you explain a bit more about the process of how this particular system, which seems on the surface to be quite complicated, came about as the preferred method in the bill and why we didn't just go with something that all Canadians are more familiar with, which would be the first-past-the-post system?

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Chair.

Mr. Minister, building off what you were saying, it's not just that the Senate is undemocratic. In recent experience it's anti-democratic in that it's been undermining and stymying the democratic will of the other side of Parliament, the House of Commons.

If I could clarify one thing in the same vein as Mr. Hill, the province of Manitoba, my home province, is listed in research as favouring abolition, and I've heard Premier Gary Doer say that as well. But by the same token, we have just recently put together a legislative committee of the provincial government to explore our options for electing our provincial senators. I don't want it to be overstated that the province of Manitoba is uncooperative in this idea of incremental reform of the Senate.

Minister, I was one of the lucky ordinary Canadians chosen in the Charlottetown accord process, when they actually put an ad in The Globe and Mail and asked...I was an ordinary Canadian once; I still am. I simply wrote a letter to The Globe and Mail, to the Government of Canada that Joe Clark had set up. What I'm getting at is that it was a consultation that was a real engagement for Canadians. There were five--six in the end--conferences across the country where they brought in ordinary Canadians, some selected the way they selected me, others from civil society, first nations groups, labour, and business. We were really seized with the issue for months and months at a time.

So I wouldn't say there's no appetite on the part of the public for a broad consultation, because in that instance the country came out. They really did. They brought their best game and they got into it.

I firmly believe that the problem with the Charlottetown accord is that we tried to take on too much at once and it collapsed under its own weight. If the Charlottetown accord had been limited to what you're putting forward in Bill C-19 and Bill C-20, I think it would have passed. We were talking about the division of power and jurisdiction, shared jurisdictions, the distribution of seats, and the way we elected senators, all at once. People's heads exploded. It just became too much, until one guy raised one feather in the province of Manitoba and said no—oh, that was Meech Lake, wasn't it? I'm mixing up my constitutional reforms here.

But if I could, in the same vein the United States gets by with two senators from Rhode Island and two senators from New York, wildly different populations. So I don't think we should agonize too much about the equal side of it at this point in time. Ours is crazy. I believe New Brunswick has ten senators, if I'm not mistaken, and Prince Edward Island has four for a population of 150,000 people. I don't know how it got so out of whack.

But the 13 failed attempts, I think, are partly because we bit off too much. So maybe with these incremental stages there is some room for optimism that we can address all those irritants that make people cry out to abolish. Maybe they can be dealt with incrementally, so that hue and cry will settle down to the point where Canadians feel this is a problem we can solve if we solve it one step at a time.

I know that's more of a comment than a question, but is there any reaction you'd like to give?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you very much, Madam Chair.

Someone was asking how the Liberals stand on this issue. I think most of us agree, because the Liberal government brought forward particular bills in the past on Senate reform.

One can't dismiss the concept of process in this, and bringing a process from a group of people who believe there should be reform of the Senate. Many of us who spoke very movingly in favour of the Charlottetown accord in the old days, as I did, certainly look at some of the triple-E reforms we talked about. The question is, how do we do this?

We know that scholars have sat on one side or the other of this debate. In 1980, the Supreme Court said that Parliament could not change the fundamental characteristics of the Senate without first getting the Senate to agree that this should be done. Then we had the 1982 Constitution Act, in which it was said that one could amend the Constitution with regard to the Senate, but there was a way of doing it. The process had to have three conditions, and I would like to add that those conditions were fulfilled in the Charlottetown accord. They said that at least two-thirds of the provinces must agree, the Senate must agree, and a minimum of 50% of the population of those provinces must agree.

When we talk about democratic change, we have to ask ourselves first and foremost whether the end justifies the means. If we don't look at what the Constitution tells us we should do, or if you want to sit on the other side and look at what the Supreme Court says we should do, then we need to have a different process. I don't believe that Parliament has it in its power to do this alone. The whole way of amending the Senate, as set out in the Constitution Act, is a good one.

My question comes back to what everyone says. We cannot—no matter how much we wish to as government—do something that is unconstitutional unless we're prepared to open up the Constitution and go into that big debate. I don't think anyone here is suggesting that; however, we can look at many different ways of electing the Senate and of achieving a new type of Senate reform that don't have to go against the constitutional amending processes.

My big question is whether this is the appropriate way to go about it. Is this legislative Bill C-20 an appropriate way? How do we go about getting two-thirds of provinces and 50% of the people to agree? How do we get the Senate to agree?

We cannot do this on our own, and that is my point. Much as I would like to see the triple-E Senate looked at, this is not the process. My concern is that when we speak of democracy we do not do something that is fundamentally undemocratic.

[Pat Martin, NDP, Winnipeg Centre, MB]

Let me say first, Minister, that I'm very pleased we're dealing with this matter today. I find Bill C-19 and Bill C-20 very interesting, and I admire that your government is taking this on. You will know that in the history of my own party since the 1930s, one of the basic tenets of the CCF was to abolish the unelected Senate. That language is important. We reaffirmed that at our most recent convention in September 2006, to abolish the unelected Senate. I don't know what the opinion of my party would be if someone came up with a motion to abolish the Senate; I don't think it would be a view that is as widely held within the party.

I note that there have been 13 efforts to reform the Senate since 1900, all of which have crashed and burned after various periods of time. As a starting point, I think my party would have liked a nation-wide referendum on whether we want a Senate at all. In fact, we put an opposition day motion forward to that effect recently.

Has your government contemplated a consultation of that kind in the lead-up to this legislation?