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

[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.

[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]

Thank you, Mr. Gélinas.

Mr. Hogg, you have the floor.

[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.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Hogg.

I can see that the comments by both our scholars are provoking many questions. My colleagues are eager to pose questions.

We'll begin with our first round of questioning for seven minutes.

Mr. Murphy, you're first.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Madam Chair.

Thank you, witnesses, for attending.

I want to get into some broad-ranging questions about two competing elected houses and the international experience, in a few seconds. But I want to give

the opportunity for Professor Gélinas to respond to Professor Hogg's contention that, if a constitutional convention became established after two or three prime ministers had chosen to endorse the choice of the electors, section 24 of the act would not be affected at all.

To be clearer in English, for me, Professor Hogg has suggested—and I don't think you quite got there in your submission—that if, after time, having put the voters to their choice and having put Elections Canada and taxpayers to the expense of a selection process, a Prime Minister elected to choose the candidates who were chosen, and if after a number of terms, let's say, or one term, that became a convention, Professor Hogg, I think, was saying that this would have no effect on who ultimately selects senators and therefore would, in itself, be fine.

Do you agree with that?

[Prof. Fabien Gélinas]

I would agree. The submission I made is to the effect that section 24 is not touched at all by the bill we're looking at, that the bill doesn't have any impact on section 24. And my answer would be the same whether or not a constitutional convention evolved after a number of years or after a number of prime ministers, to the effect that the Prime Minister has to follow the results of the consultations.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

That's very clear. Thank you for that.

Now, on the broader question, it seems that on the black letter aspect of this legislation there's nothing that you feel impugns the Constitution. That's fine. But the political effect of it is that the selection process will be followed, in all likelihood, by prime ministers, and therefore it changes directly the method by which senators are elected or selected.

Therefore we can envision in a very short time two democratically elected houses. I tread very carefully in talking about Australasia and New Zealand and Australia. But in New Zealand, I believe, that never came to pass, because they rejected the elected aspect. In Australia there are specific powers between the two houses, as there are in the United States under the presidential aspect of veto.

There is a very short time, but how do you envisage this working in our current environment with, effectively, an elected Senate and an elected House of Commons with respect to gridlock and stalemate? I'll give you each an occasion to answer that, if we have time.

[The Chair, Liberal, Albina Guarnieri]

Mr. Hogg.

[Prof. Peter Hogg]

Mr. Murphy, I think it would be highly desirable, if the Senate is going to become in effect an elected body, to have provisions to change the representation of provinces into some form of equal representation, as was proposed in Charlottetown, and also to have a provision for dealing with gridlock between the two houses, something like a joint vote or something of that sort.

The government's problem is that it can only do limited things without a constitutional amendment. The Charlottetown accord was a very complex and very clever system for getting to a triple-E Senate, but of course it envisaged a constitutional amendment. Without a constitutional amendment, it's difficult to put these other things into place.

You can get along without formal provisions for conflict between the two houses. In the end, if one house says no and the other says yes, the bill fails, and that solves the problem. In a system of responsible government, if it's the Senate saying no and the House of Commons saying yes, that's not something we're used to, but I think we'll have to get used to more of that kind of thing if we ultimately evolve an elected Senate.

[The Chair, Liberal, Albina Guarnieri]

Mr. Gélinas, do you have anything to add?

[Fabien Gélinas]

I would just emphasize that the creation of a constitutional convention is not easy to predict. Just passing legislation does not mean that a constitutional convention will result. If a new prime minister were elected, that new prime minister would have the option to decide not to hold elections and consultations, to state and repeat that he was going to use his discretion independently of any consultations. So it is entirely uncertain at this stage whether a constitutional convention will be created. I think it is quite important for that to be said.

In practical terms, the creation of a long-term constitutional convention, of course, would cause a deep change in our system that would raise questions that we cannot answer today. This is exactly consistent with my preliminary remarks.

[The Chair, Liberal, Albina Guarnieri]

Mr. Murphy, you have about 20 seconds left.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Why did people reject the proposal to elect a Senate in New Zealand?

[Prof. Peter Hogg]

New Zealand is a small country. It's not a federal country. It had an upper house and it abolished it. Australia is geographically a much larger and more diverse country, and of course it has an upper house, but it has mechanisms for dealing with conflict. It's a triple-E Senate in Australia, and it has provisions of a kind that you are indicating, Mr. Murphy, for resolving conflict. I think at a certain point they have a joint sitting of the two houses, and because the House of Commons is more numerous, it usually means that the House of Commons can prevail.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Monsieur Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you both for your presentations. I confess that I am no great expert on constitutional law. So I feel that you are going to shed a lot of light on this for us.

When the government House leader spoke to the committee to introduce Bill C-20, he said, on page 3 of his speech:

The bill is carefully drafted to ensure that the Senate will remain a chamber of independent sober second thought and that its essential positive characteristics are maintained. This legislative proposal is drafted so as not to make any changes that would require a formal constitutional amendment. This flexibility is important. It will help to ensure that nominees are available to fill seats as they become vacant. For the first time ever, Canadians across Canada will have a direct say in who should represent them in the Senate.

[The Chair, Liberal, Albina Guarnieri]

Excuse me, I think we are having problems with the interpretation. Can you slow down a little? Thank you.

[Pierre Paquette, Bloc, Joliette, QC]

Yes.

We really get the impression that, faced with repeated failures to reform the Senate, the Conservative government, who have made this their kind of trademark, has come up with a bill that addresses the main pitfall, the constitutional amendment process that Senate reform would normally entail. So, the bill has been written so that the sections that you mentioned, section 24, for example, are not affected, though the political intention is still to have an elected Senate. That has come up on several occasions.

For example, to hold public consultations under Bill C-20, it would cost $150 million, according to the Chief Electoral Officer, or about half the cost of a general election. I cannot see how the Prime Minister, who proposed this reform, would not take the results of the public consultation into account. They are doing indirectly what they cannot do directly. That is, getting themselves a list of candidates who have been indirectly elected. If you combine Bill C-19, which limits terms to eight years, and Bill C-20, which establishes public consultations, you have Senate reform, that is for sure.

In my opinion, what we are looking at is a complete reform of the nature of the Senate as conceived by the founders of Canada.

Let me ask you for your opinion. Is it not your impression that Bills C-19 and C-20 are going to let the government and Parliament, if they are passed, do indirectly what the Constitution prevents them from doing directly?

[Fabien Gélinas]

Of course, when we talk about doing indirectly something that we have no right to do directly, that is even more reason for it not to be allowed and to know why it is not allowed. I feel that the bill is put forward in the spirit of not changing the essential characteristics of the Senate.

[Pierre Paquette, Bloc, Joliette, QC]

They are trying to use it as a back door to put in place the reforms that they cannot put in place by amending section 24.

[Prof. Fabien Gélinas]

It could be said that it is the prerogative of the government to try to establish constitutional practices or customs. The next government also has the prerogative to not follow the same rules. With decisions of successive governments, the existence of constitutional conventions may be eventually established, but before that, there is no change. So a number of things have to happen for a convention to come about.

I agree with you when you say that Bill C-20 is more suspect when it is considered together with Bill C-19. It becomes more suspect because we start to see an attempt at reform that looks a little more significant. It is one thing to elect a person who is going to stay in place until the age of 75, but it is clearly another thing to elect someone who is going to stay one year, five years, eight years, twelve years. That is not the same thing. Each scenario must be looked at very closely to see if we are crossing the line of what the Constitution allows Parliament to do unilaterally.

On Bill C-19, I do not share the view of my colleague Peter Hogg on the relevance or otherwise of the Senate Reference. I think that the Senate Reference is still relevant in interpreting the scope of section 44 of the Constitution Act of 1982, that is, in interpreting the scope of the federal power to unilaterally amend the Constitution of Canada. Even so, that does not mean that Bill C-19 goes too far. I can expand on that if you are interested.

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Hogg, would you like to react to that at all? After all, on page 1 of your presentation, you say: “Obviously, the bill assumes that the Prime Minister would be under a political imperative to respect the outcome of the consultation he has ordered...”

The bill provides a flexible way to get around constitutional rules. But you agree with me that, politically, they are in fact moving towards Senate reform.

So are they not doing indirectly what they cannot do directly?

[Prof. Peter Hogg]

Monsieur Paquette, it does skate very close to that doctrine.

There are two things I think one can say to help allay that concern. To pick up on Mr. Murphy's point, this bill is to the disadvantage of the Prime Minister. It is to the disadvantage of the Prime Minister because it will diminish his powers over time.

The fact that it is a purely optional thing means it can't be taken for granted that it will become a convention that lasts forever. So I think it's perfectly legitimate for Parliament today to treat it as an optional mechanism, knowing it is likely that it will then become generally used.

The second thing I think one can say is that Parliament does have power to make changes to the Senate, and over time we would expect institutions to change. So what is happening here is that we are moving in a more democratic direction than we have done before, but I think still falling short of violating section 24 of the Constitution.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Hogg.

I am sorry, but your time is up.

Mr. Angus, you're next on the list.