Thank you, Madam Chair.
I would like to thank the members of the committee for the privilege of testifying before you today, by means of technology.
I share the same doubts as those expressed by my eminent colleagues as far as the constitutionality of Bill C-20 is concerned. I will now share those doubts with you.
To begin with, I think that one must reject any restrictive interpretation of the exclusion of the method for selecting senators under section 44, which deals with the federal Parliament's authority to unilaterally amend the Constitution. To my mind, there is no logical reason why one would impose a restrictive interpretation of this exclusion when it comes to the senator selection process.
In my opinion, both the text and historical context which led to the adoption of this constitutional amendment procedure support such an interpretation. Both the French and English versions of the text match and the reference on Parliament's authority with respect to the upper chamber further supports this interpretation, that is, a broad interpretation of the exclusion regarding the senator selection process.
Indeed, it is the senator selection process and not simply the appointment process or the power to appoint senators which is excluded from the unilateral jurisdiction of the federal Parliament. The selection process, in my opinion, includes the entire process which precedes, and directly leads to, the appointment of a senator by the Governor General. This would include the manner in which the selection process is carried out, the practices adopted, and the procedure that is followed or the absence of such a procedure.
The 1980 reference concerning the Authority of Parliament in Relation to the Upper House further supports, in my opinion, this broad interpretation of the method used to select senators. It is generally acknowledged that section 42 essentially codifies any potential changes to the essential characteristics of the Senate specifically listed in the reference.
I would remind you that in the reference, the Supreme Court of Canada considered that the non-elective nature—and I stress the word “nature”— of the Senate is a fundamental characteristic of it. The Supreme Court then specifically ruled on the fact that the direct election of senators was not within the federal Parliament's purview.
Among the other questions asked of the Supreme Court of Canada in this reference, questions which it left unanswered due to a lack of sufficient evidence, and specifically in the federal government's order in council under which the reference was made, reference was also made to the possibility of senators being selected by the House of Commons, and then appointed by the Governor General, or selected by the legislative assemblies, and appointed by the Lieutenant-Governor. It is my opinion that when the drafters wrote subsection 42(b) in 1982 and used the expression “method of selecting senators”, that they were perfectly aware of this context, that is of the various senator selection methods that were targeted. So, they settled on an overarching generic expression: “method of selecting senators”.
To conclude, it is my belief that what is excluded, and that which does not fall under the purview of the federal Parliament, is not only any change to the senator appointment method under section 24 of the Constitution Act of 1867, but any authority with respect to the senator selection process. This broad interpretation therefore allows us to go beyond the formal distinction between a mandatory process or simply an optional or consultative process.
In my opinion, any legislation dealing with the process for selecting senators would not fall under the federal Parliament's purview, and, rather, would be subject to the normal procedure governing constitutional amendments, that is the 7/50 rule, stipulated in section 38.
Now, more specifically relating to Bill C-20, it is my belief that in light of this analysis of section 44, Bill C-20 exceeds the authority of the federal Parliament. As with any piece of legislation, Bill C-20 must necessarily survive an examination of its constitutional validity. For this to occur, well-established jurisprudence indicates that the real nature of this bill must be qualified and that it must be associated with a parliamentary head of jurisdiction. Moreover, in order to make such a qualification, both intrinsic and extrinsic evidence in relation to this bill may be brought to bear, notably in relation to its legal and practical effects.
In my opinion, the only possible federal authority which may be argued in support of Bill C-20 is, in fact, section 44 of the Constitution Act of 1982, which gives the federal Parliament jurisdiction with respect to the Senate subject to, interestingly, the exclusion regarding the method of selecting senators. However, in my opinion, it is clear that the real nature of Bill C-20 has to do with the method of selecting senators. The purpose is to create a new consultative election process as part of the overall senator selection process.
In my opinion, the optional and consultative nature of this new process is not material. The very essence of Bill C-20 is to add a process which did not exist previously as part of the method of selecting senators.
Moreover, the practical and legal ramifications of Bill C-20 further support this thesis as to the real nature of the bill. The practical effect of Bill C-20, if it were used—and one would imagine that it would indeed be used since there is a push to have it adopted—would be, even though it is theoretically optional, to add a new process to the method of selecting senators. Furthermore, a predictable or potential legal outcome of Bill C-20 may be the development of constitutional conventions which would, once again, intervene in the senator selection process.
And finally, I believe that this conclusion is analogous to the spirit of the 1980 reference on Parliament's authority with respect to the upper house, which essentially denied that the federal Parliament had any jurisdiction in matters relating to the essential characteristics of the Senate. Now, it is foreseeable that, should this bill pass and be applied, that when there is a critical mass of senators appointed following a consultative election, they will feel just as legitimate in terms of their democratic representativeness as members of the House of Commons. As a result it is foreseeable that the Senate's role in the federal legislative process may be bolstered, and that senators will demonstrate less restraint in the legislative process in relation to decisions made by the House of Commons. And, at the end of the day, I think that that would have a direct impact on the fundamental nature of the Senate.
In closing, given these serious doubts concerning Bill C-20's constitutionality, I believe that it would certainly be more prudent to have the bill submitted to the Supreme Court of Canada so that it may decide as to the bill's constitutionality, and clarify any doubts, if need be.
Thank you very much.