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

[Prof. Peter Hogg]

Well, I think it's important, Mr. Moore, because if the Prime Minister were required to use the consultation process and were then required by statute to give effect to the outcome, I think we would have a very strong argument--along the lines of Mr. Paquette's point--that Parliament was doing indirectly what it couldn't do directly.

I don't think it's conclusive. I agree with my colleague that there would still be some doubt, but it is to move the statute into the truly safe constitutional area that those two points of discretion have been left.

[Rob Moore, Conservative, Fundy Royal, NB]

Some have suggested that the bill--and you alluded to this in your answer--attempts to do indirectly what cannot be done directly. Obviously I don't agree with that, since the bill in no way affects the method by which the Prime Minister and Governor General select a senator.

So where would that line be blurred? You said it's well in the safe ground. How is it that you see it's clearly safe? Where we would be attempting to go too far? Can you conceive of a situation where the bill would be going too far? You're saying quite clearly throughout your report to us, and also in your conclusions at the end, that the bill seems quite clearly on safe ground.

[Prof. Peter Hogg]

I think you can start with the proposition that the appointing power under section 24 does not say anything about the Prime Minister at all; it just speaks about the Governor General. It doesn't restrict in any way the kinds of consultations that the Prime Minister can undertake or the considerations the Prime Minister can take into account.

All the bill is really doing is providing a mechanism, a purely optional mechanism, for a formal consultation in respect of the wishes of the electorate. It's not adding anything that can't be done now. It's formalizing exactly how the consultation will take place. It will take place as part of a general election or a provincial election. You'll use the single transferable vote method of counting, etc.

So that's why I say it's in the safe ground—it's optional and it simply provides a mechanism of consultation that is not very different from what the Prime Minister is free to do right now.

[Rob Moore, Conservative, Fundy Royal, NB]

If there are any other comments you or Mr. Gélinas would like to make, you can interject at any time.

I have one last point. You mentioned that the Prime Minister may be under a political imperative. You see this as distinct from a legal imperative. That's what puts this bill on safe ground. No matter how strong the political imperative is, as long as it's only a political imperative, would the bill remain on safe constitutional ground?

[Prof. Peter Hogg]

I think so. I agree with the proposition that when people vote in a consultation for members of the Senate they will expect their views to be respected. I think that's the view the Prime Minister will take, and I don't think there's anything unethical or fraudulent about it. I think the Prime Minister will feel the same way as the people who are voting. But the truth of the matter is that the Prime Minister doesn't have to respect the result. You could imagine unusual situations. For instance, a consultation could be contaminated in some way that would lead the Prime Minister to feel that the result should not be respected.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Liberal, Albina Guarnieri]

Mr. Angus.

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

I'm not sure which professor reminded us that the Senate is a relic of a much less democratic time. We're still trying to come to terms with amending this in a much more democratic era. But many things have also changed in how Canada has been structured. We are now in an era in which our provincial governments play increasingly important roles in the delivery of services. We have our large municipalities, the cities, wanting to become de facto states of sorts. Regional interests are becoming stronger. I don't think anyone would accuse Mr. Danny Williams of not being heard when it comes to representing the interests of his region, and Newfoundland and Labrador is a small province.

I'm wondering, if we have three levels of government and two of them are very strong, has the role of the Senate become a little less important in balancing off the role of the federal government?

[Prof. Fabien Gélinas]

Of course this is a 100% political question.

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

I'd love a 100% political answer, please.

[Prof. Fabien Gélinas]

I will try....

[The Chair, Liberal, Albina Guarnieri]

You're allowed to give answers within your comfort level.

[Prof. Fabien Gélinas]

Yes, of course.

I will actually drag it back to a more comfortable area. I will say that to a large extent, since 1982, a significant part of the role that had been played by the Senate and that was expected of the Senate is now being played by the Supreme Court of Canada. This is something that I think is part of the malaise with the Senate. It's not necessarily a question that should be analyzed in terms of democracy.

I personally don't think that democracy means only majority rule in every aspect. We are proud to have independent courts of law that are not elected--judges are not elected--and this is an absolutely fundamental feature of our democratic system. And to a certain extent, I think, the Senate can play a significant role. It is true that the Supreme Court has taken some of that away from the Senate since 1982. That doesn't mean there's no role left for people who are not necessarily elected.

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

I'm glad you brought up the role of the Supreme Court, because it certainly has changed very much in terms of interpreting our national law.

I'm trying to find out how we, in this day and age, manage to maintain a relic like the Senate, which seems to be often appointed on a partisan basis. There have been some excellent candidates and there have been some pretty sketchy people in there as well.

[An hon. member]

[Inaudible]

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

Yes, but the difference is that in the House of Commons we have to go back to the people, and they decide whether or not we should be in the House. I know some of my Liberal friends certainly think that party bagmen can stay in there till the age of 75, that it's a perfectly legitimate dumping ground. I personally don't agree.

One of the arguments is that they play an important role in protecting regional interests. I have a senator from my region, the great Senator Frank Mahovlich. I say “great”; he was a great hockey player, number 27. He came from Schumacher--the same town, by the way, as the industry minister, Jim Prentice, comes from. I have nothing against Frank Mahovlich, but the only time I ever see him in my riding is during elections to try to have me defeated. That seems to be a regional role he plays, to come up and promote the Liberal flag.

I'm asking all this because I don't see anything in this bill that would set out how we would ensure that regional interests are guaranteed. In Ontario, for example, if we have five candidates picked, they could come from anywhere. There's nothing to say that they are going to be aboriginal or they're going to come from the north, or one from the city and one from the rural southwest.

How can we be assured that this Senate will actually represent its so-called regional interests if it's done on a very ad hoc, hit-and-miss basis?

[Prof. Peter Hogg]

I don't think there is any answer to that. If you look at the Australian Senate, for example, where an equal number of senators are elected from each state, it votes entirely on party lines. The protection of the states from which the senators are drawn, if it's a consideration at all, is an awfully hard consideration to discern. And similarly, our own Senate typically votes on party lines. Now, they'll often give up in the end, because they recognize that they are not an elected body and shouldn't frustrate the House of Commons on other than the most important things. But I think the influence of party tends to be inconsistent with the protection of regional interests.

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

I have one last question.

[The Chair, Liberal, Albina Guarnieri]

That will have to be your last question, Mr. Angus.

Mr. Gourde.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

Thank you very much, Madam Chair.

I thank the witnesses. We are fortunate to have testimony of such high quality today.

I am not a constitutional expert; I am a regular guy. People in my constituency believe, as I do, that an elected Senate would be more representative of Canadian values. But I have questions. Correct me if I am wrong, I do not understand everything.

On the power to appoint, I thought I understood that, even if we succeeded in getting an elected Senate, section 24 would more or less bring things back to the way they were before, except that the Prime Minister could use the nomination list or ignore it entirely. I am concerned by the suggestion that freely elected people are not what the Prime Minister wants. From a moral perspective, what obligation to Parliament would he have about this list?

[Prof. Fabien Gélinas]

If you want an elected Senate, you can use the procedure for amending the constitution. You get the consent of the provinces and you change the Senate to an elected body. There is no legal reason why you cannot do that.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

I did not expect such a simple answer.

Are you in whole-hearted agreement, Mr. Hogg?

[Prof. Peter Hogg]

I do agree that we could switch to an elected Senate if we went through the amending procedure. But as I said earlier, if a consultation is held and the Prime Minister is confronted with a list of the wishes of the voters as to who should represent them in the Senate, he will feel a moral and political obligation to respect that as well, in the great majority of circumstances. So I think the concern that he will then whimsically go for somebody he prefers is not very likely to happen, because the politics of that would be so difficult for him.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

I understand that, under section 24, the Governor General proposes names for the Prime Minister's list. Did I understand correctly?

[Prof. Fabien Gélinas]

Legally, the Governor General makes the appointment, always on the Prime Minister's advice.

From a moral perspective, it comes back to the distinction you make between a legal imperative and a political imperative, as Mr. Moore mentioned. It is useful to recall the difference between these two kinds of political imperatives. A political imperative is the result of promises made by a politician whereas a legal imperative has a much more significant normative force. It deals with constitutional conventions, or constitutional property, which is something else. This is not simply the fear of losing votes, it is a feeling of obligation because of what the Constitution of Canada deems to be obligatory. So, if a convention arises from a practice, it becomes obligatory just as strongly as in the legal sense, though the legal sense has different authority. You have to keep that distinction in mind when you are talking about a moral obligation.

In practice, it means that the current Prime Minister would have a moral obligation to observe his own policy, but that would not mean that the prime minister who succeeded him would have to do the same. Perhaps he would have no moral obligation to do the same thing. If that is the case, he could just not hold consultations, which is quite possible under the bill.