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

[Prof. Fabien Gélinas]

I'm not convinced that the Supreme Court would take such a stringent view on the question of inter-delegation, and so I wouldn't be 100% certain that this would hold.

[Prof. Peter Hogg]

I suppose that some alternative to Bill C-20, supposing there's a vacancy in Alberta, could give the Prime Minister the power to consult the Legislative Assembly of Alberta. I don't think that would be very different from what is now being proposed in Bill C-20, so I think it would probably be okay as well, if that were the route chosen.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I have one last question. This one, I think, will be fairly brief.

I've been struggling too with the question of whether an advisory election constitutes an actual election or whether the advice can be set aside. The parallel that occurs to me as perhaps the best--and I guess I'm asking whether you agree with me that this is a valid parallel--is the prohibition plebiscite of 1898, in which a majority of Canadians voted in favour of prohibition. A very large minority voted against it, and of course there was a very strong regional divide. Based on that, the Prime Minister of the day chose to set aside the result.

I'm wondering whether, in essence, that option would remain available to prime ministers if they should see some kind of problem. What I'm really getting at is whether this is in fact to be understood as being an election that is advisory rather than being a de facto way of doing indirectly that which cannot be done directly, imposing an obligation on the Prime Minister and therefore on the Governor General.

[Prof. Peter Hogg]

It certainly is explicitly only advisory, because the bill ends with the Chief Electoral Officer reporting the results to the Prime Minister, and that leaves it up to the Prime Minister.

I could imagine a situation, Mr. Reid, where perhaps the election had been contaminated in some way. I find it a little hard to imagine, but perhaps some kind of racism had been openly part of the election; the Prime Minister might decide then that this really was one case where he wasn't prepared to accept the outcome. This would, I think, be open under this bill, and I don't think it's an impossible scenario.

[The Chair, Liberal, Albina Guarnieri]

We'll begin with our five-minute round of questioning.

Madam Fry.

[Hedy Fry, Liberal, Vancouver Centre, BC]

I've practised what I'm going to say about the fact that I am certainly not a lawyer. I have heard Mr. Hogg, Professor Gélinas, and the Canadian Bar Association give three very different opinions on this issue. I suppose It's interesting to see how one can split the law the way one can split a hair.

I'm not going to go into the splitting of that, because I'm not lawyer and therefore I can't debate that. However, I like to look at outcomes; this is what I'm good at as a physician. For me, the outcome of this piece of legislation is going to be very important, and if the outcome fundamentally changes the way our parliaments work, then one has to be concerned about what that outcome is going to be. Whether one can get around it by saying that the Prime Minister doesn't have to abide by the results of those elections.... That's one way of getting around the constitutionality, but is it a valid and ethical way to get around the constitutionality if the outcome is going to affect Canadians?

Secondly, if one takes something to the people and asks the people to vote, would the people—who are an institution, if you want to look at them as such—or will civil society believe that by voting they are automatically doing the democratic thing and that the vote should and must be taken into consideration or must be a mandatory thing?

Having said both of those things, because obviously the outcome here is to democratize the system—and no one is against that, we are all in favour of it—and given what the Supreme Court had to say about changing the fundamental way we elect senators.... That's the outcome at the end of the day; whether constitutionally you can get around it or not, that's going to be fundamentally changed. The way the Senate and the House of Commons work is going to be fundamentally changed.

I wonder first about the ethics of it, because that's the outcome—what is the ethical outcome you're looking for?—second, whether it is democratic; and third, given how the people voted on the Charlottetown accord, whether the people want us to do this. I would like to suggest that there's a different process, a more democratic and a more meaningful process of getting this done. One of the ways, as the bar association suggested, would be to go to the Supreme Court with the question.

Could you give me some answers about the ethics of it, the democracy component of it, and obviously whether the Supreme Court should speak to this issue or not?

[The Chair, Liberal, Albina Guarnieri]

Which one of you is first? Go ahead, Mr. Gélinas.

[Prof. Fabien Gélinas]

Your question presupposes that it's going to change the system. It's a step toward changing the system, that's for sure, but I don't think we can take for granted that the system will be changed.

It could very well be a matter of being a flash in the pan here. The next Prime Minister might refuse to hold consultations for the appointment of senators. The next Prime Minister, or even this Prime Minister, might have a constitutional agenda that will be put on the table and might negotiate things with the provinces that will change everything fundamentally.

This is all politics, and it doesn't really affect the answer to a legal question. The legal question, of course, is not cut and dried. It is not always as clear as one might expect it to be. There is no question that political principles have an influence on decisions in hard cases, and this could eventually be a hard case if both statutes go forward. I am not saying that it's not difficult.

The question of ethics would be answered by the electorate. If a Prime Minister holds consultations and, for no obvious reason, decides not to follow the result, then there'll be an outcry, there'll be outrage, and there'll be political sanctions. That is my answer.

[The Chair, Liberal, Albina Guarnieri]

Would you like to make a comment?

[Prof. Peter Hogg]

Let me say that I agree with everything my colleague has said.

Let me just add something on the question of whether this should be referred to the Supreme Court. That, of course, is not a democratic measure, but it gets an authoritative ruling on the constitutional law. My view is that the constitutionality of the bill is sufficiently clear that the step isn't really necessary. But if one believed that the constitutionality of the bill was reasonably uncertain, it would be a sensible step to make a reference to the Supreme Court and get a ruling straight away as to whether this could be done.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Professor Gélinas answered the question about not being sure of the outcome. Again, I am being possibly particularly naive here, because I'm not speaking as a lawyer, but for me, when outcomes are in doubt, one is very careful about how one embarks upon something new.

You're unsure of what the outcomes are going to be, especially when the outcomes can fundamentally change the nature of our Parliament. This is why I am suggesting that one needs to look at this process very carefully, because there is a risk in the outcomes. You don't know what the outcome is going to be; it could be positive or it could be negative. It could be, by stealth, electing a Senate eventually.

Those are things that concern me, from an ethical point of view, when you're not sure of the outcomes of your risk.

[Prof. Fabien Gélinas]

There is a question of how risk-averse one is, and people have different temperaments. If it's really a question of how much you want to control the risks, outcomes are never 100% certain--never. It's really a question of degree we're looking at; at least, it seems so to me.

This is a point I had forgotten from your first question concerning the wisdom of going to the Supreme Court. My view is that Bill C-19 is more suspect than Bill C-20, which isn't suspect if taken on its own. Of course, if one goes to the Supreme Court, it would be more effective to send both at the same time to the Supreme Court, but again that is a political decision.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

We'll go to Mr. Chong.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Chair.

My question concerns Bill C-20 in light of the upper house reference of 1980, and specifically some of the provincial concerns that have been raised here and previously about these pieces of legislation. I'd like both of you to respond to these concerns and give us your opinion on them.

The Province of Quebec has traditionally demanded that the National Assembly play a role in the selection of senators to the Senate of Canada, and has also raised issues about the constitutionality of Bill C-20 in the Senate committee hearing. At that committee hearing, Mr. Pelletier noted that in his view the federal bills on Senate reform represent not limited change but fundamental change to the nature of the Senate.

So in that context, and in the context of the upper house reference of 1980, which stated that the Government of Canada could not unilaterally alter or change the fundamental features, or central characteristics, of the Senate with respect to its regional representation and its other essential features, do you agree or disagree with Mr. Pelletier's view on this, or do you share some of his views and not others?

Maybe you could tell us what your views are of this.

[Prof. Peter Hogg]

To start, it would be an improvement to Bill C-20 if the consultation were with members of the legislative assembly of the particular province. I suppose that could have been an alternative mechanism. But surely if that person believes that Senate appointments should be made in consultation with the National Assembly of Quebec, the consultation of the people of Quebec would at least be second best, if not first best. And since it doesn't make any changes in the representation that Quebec has in the Senate, which is very large compared with its proportion of the population, it seems to me that there isn't a strong federal-provincial issue here—at least that I can see.

[Prof. Fabien Gélinas]

In terms of the power of the Prime Minister to consult, I don't think there are any legal limitations on that; the Prime Minister can consult whoever he wishes before making decisions. I don't think it goes to the legal validity, in constitutional terms, of decisions that are made.

Concerning the broader issue of the impact of the Senate reference upon the interpretation of the amending formula in the Constitution Act of 1982, my view is that the Senate reference is still completely relevant to the interpretation of the amending formula. It's relevant in the sense that I don't see any reason to believe there was a decision to change the law in 1982 concerning the power of Parliament unilaterally to change the Senate. That power was there under section 91. Section 91 was turned into section 44. I don't believe there was any intention to change the law concerning the unilateral power of Parliament.

That being said, whether this particular reform is changing the fundamental features of the Senate is a very difficult question, and I think the answer would be different depending on whether the tenure of senators were renewable or not, and depending on how many years you're looking at. The relevant criterion under the Senate reference—and I think it's still relevant—is whether it's housekeeping on the one hand or fundamental features on the other hand.

It's not easy to answer that question, and the number of years I think is particularly important, as is the renewable character of the term for senators.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Monsieur Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Madam Chair.

Mr. Gélinas, you wanted to make some more comments about Bill C-19. Would you like to take this opportunity to tell us your thoughts?

[Fabien Gélinas]

I did look at the constitutionality of Bill C-19. I looked at it when it was S-4. In the current version, a senator's term is non-renewable. Whether it is or is not renewable is very important. This is because, in assessing the essential characteristics of the Senate that were discussed in the 1980 Senate Reference, the role played by the Senate and the importance of the senators' independence in fulfilling their state roles must be taken into account.

In my view, this is absolutely fundamental. Senate independence is not the same as judicial independence. But there is one fundamental characteristic. Senators must not find themselves, as members of the House of Commons do, facing elections at short and specified intervals. The question of independence, the question that has to be asked, in my view, means knowing whether the mandate that senators are going to be given will allow them to continue the unencumbered role they have played up to now in the legislative process. Will they remain independent enough for it to be concluded that the fundamental characteristics of the Senate have not been changed? That is the question, in my view.

I would be much more comfortable if a senator's term were 10 or 12 years. I think that 8 years is marginal. It is not an easy decision. The Supreme Court would ask whether senators were independent enough for it to be concluded that the fundamental characteristics of the Senate have not been changed by the bill.

But a non-renewable term of eight years still allows quite a significant degree of independence. Take the example of the Conseil constitutionnel in France. It is a partly judicial, partly political body whose members are appointed for a non-renewable nine-year term. They are considered independent.

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Hogg, in the document you presented, you say that the age limit in the Constitution is 75. That being the case, does Bill C-19 represent a more direct amendment to the Constitution?

[Prof. Peter Hogg]

Yes, Mr. Paquette, it does constitute an amendment to the Constitution, but it is an amendment that is authorized under section 44, because that section allows Parliament to make laws amending the Constitution of Canada in relation to the Senate. And it only exempts from that power the four matters I talked about earlier.

Let's leave the Senate reference aside for a minute, because we don't agree on that, but section 42 withdraws from the unilateral power of Parliament the powers of the Senate, the method for selecting senators, the number of members by which a province is entitled to be represented in the Senate, and the residence qualifications of senators. Since the term limits don't touch any of those four things, the amendment comes within Parliament's power under section 44.

I say that the upper house reference is simply overtaken by these provisions, because what the Supreme Court of Canada said is that certain fundamental or essential things could not be done unilaterally by Parliament. Two years later, the Constitution Act of 1982 specified the things that cannot be done unilaterally by Parliament, and surely that was intended to be a reflection of the fundamental things that cannot be done unilaterally by Parliament, making it clear that what the Supreme Court said was extremely vague.

[Pierre Paquette, Bloc, Joliette, QC]

Your opinion is that Bill C-20 does not affect the provisions of the Constitution. But the government is presenting us with Bill C-20 as Senate reform.

Let me quote once more. It would be a slight exaggeration to say that it is from my favourite author, but it is from my favourite government House leader. He says this:

However, members of this committee should note that if change cannot happen through reform...then we believe that the Senate should be abolished.

If I understand you correctly, your are of the opinion that this is not about a change to or reform of the Senate constitutionally. In fact, you do not think that it is about Senate reform period. You feel that it is simply about a new form of consultation that the Prime Minister could use. Officially, I mean. Am I mistaken?

[Prof. Fabien Gélinas]

The Parliament of Canada has the power to change the Senate under section 44 of the Constitution At of 1982. That can be said to be Senate reform because it affects the Senate without changing the Constitution. So I do not think that the terminology changes a great deal.

[The Chair, Liberal, Albina Guarnieri]

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Thank you to the witnesses. I apologize for having to step out for a bit, and I also apologize if my question covers some of the ground that you've already covered.

Mr. Hogg, I look at your conclusion in your brief that you submitted to the committee: that if the act were challenged in court on constitutional grounds, the challenge would be unsuccessful, and that the Parliament of Canada does indeed have the power to enact Bill C-20, and if it were enacted, it would be a valid act of Parliament. Obviously I agree with that.

I'm looking at the first page, your last paragraph, and you didn't go over that in your opening remarks. So I just wanted a bit of a review.

It says that the bill stops with the counting of votes and the report to the Prime Minister. It does not go on to declare that the successful nominees are elected; nor does it say that they will be appointed. The bill does not impose any duties of any kind on the Prime Minister or the Governor General. And it says that obviously the bill assumes that the Prime Minister would be under a political imperative to respect the outcomes of the consultation that he has ordered, but this is not a legal imperative.

Can you explain how you reached that conclusion, but also explain why that is important for the constitutional validity of the bill?