Evidence of meeting #6 for Bill C-20 (39th Parliament, 2nd Session) in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was senate.
A recording is available from Parliament.
4:35 p.m.
Liberal
April 30th, 2008 / 4:35 p.m.
Liberal
John Maloney Liberal Welland, ON
Bill C-20 today has come under significant criticism. Is there any way that you feel this bill could be massaged to make it constitutional and credible, or are we just stuck with the suggestion that the bill should be scrapped?
4:35 p.m.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
My simple answer is that the bill should be scrapped. It is completely unconstitutional.
4:35 p.m.
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
Well, I don't want to be charged with unrealism. I think Canada should engage in a constitutional discussion about its national Parliament. It's time Canada engaged in that discussion—it's past time. I know there are horribly intense interests that will hold that discussion up, but we could be better for having it.
4:40 p.m.
Liberal
John Maloney Liberal Welland, ON
Taking into consideration that some day we will have an elected Senate with regional interests being reflected, how do we also reflect the interests of minorities, disadvantaged people, and women in an elected Senate? Can we not protect that or preserve those values?
4:40 p.m.
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
We absolutely could if we sat down and asked what we want our upper house to do. When you have bicameral legislatures, the first reason is to get a second thought. Sometimes it is structured so that you get a second sober thought, a less partisan thought. Finally, it normally has different representational goals from those of straight representation by population, including the representation of the vulnerable or minorities. Of course, all that could be structured.
By the way, the single transferable vote mechanism in Bill C-20 also could have some beneficial effects on diverse representation. It's hard to see exactly how, but it could. Proportional representation is generally thought to have some kind of beneficial effect on broader representation. That part of Bill C-20 could be a plus.
4:40 p.m.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Your question actually gets me to reveal what I think should be the proper way to go about this.
First, I agree with my colleague John Whyte that there should be proper consultations done with all the provinces. To my knowledge that hasn't been done, despite the fact that the federal government, as I said, has bestowed the notion that the Québécois are a nation and yet at the same time ignores the request from the Quebec government to engage in consultations. I know that Quebec, for example, is so serious about this legislation that they may even take it to court, as will some other provinces.
It starts with proper consultations with the different partners in Confederation. I think we're mandated to do that anyway by the legislation we passed in the wake of the referendum, when we promised to consult all the regions of Canada on a constitutional amendment.
Second, I think we have to look at thinking outside the box. I think Madam Guarnieri will remember that one of the things I liked about the Charlottetown accord was the possibility of having an interim stage of indirect elections to the Senate via the provincial legislatures, with the consent of the House of Commons and the Senate.
There was consensus there. When people say that proper reform could never be reached, they ignore the fact that in the Charlottetown accord there was national consensus on an indirect form of election to the Senate. That shows that it can be done.
4:40 p.m.
Assistant Professor, Faculty of Law, Laval University, As an Individual
In response to your first question, I would simply say that it is impossible to save the constitutional validity of Bill C-20. I think it is fundamentally invalid constitutionally.
4:40 p.m.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
When I appeared before the Senate on what was then Bill S-4, I basically said that the two bills have to be considered together because they're part of a plan by the present government to amend the Constitution by--and I'm going to use a word that I refrained from using--stealth.
You cannot amend the Constitution of Canada by stealth. The two statutes put together are an attempt to amend the Constitution by stealth.
4:40 p.m.
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
It makes sense, of course, to reform the Senate all at once and not to be electing people for life or fifteen years or eight years--we don't really know what. It doesn't make sense to be limiting terms to fifteen years or eight years when we don't know how they'd be chosen. It's no way to design a national legislature, to throw up a sort of jump-ball reform and see what shakes out. People play basketball that way, but they don't design nations that way. Of course they should be worked out together.
On Bill S-4 and Bill C-19, again, Professor Hogg and I disagree. He thought there was no constitutional problem and that it perfectly fell within section 44 of the unilateral federal amending power. I thought that it didn't.
My analysis on the constitutional validity, which I did give to the Senate, is that it's more tenuous. It's a harder question.
Very briefly, let me say that I think the structure, the composition, the term, and the qualification of the Senate are part of the essential federal arrangement, the federal accommodation. The Senate is part of our historic federal accommodation, and you can't just make a long list of changes that don't fall within paragraphs 42(1)(b) and 42(1)(c) and say that everything is open to unilateral federal amendment. That's not Confederation.
4:45 p.m.
Liberal
The Chair Liberal Albina Guarnieri
Thank you, Mr. Whyte.
Mr. Maloney, time has expired.
We'll proceed with Mr. Reid, please.
4:45 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Thank you, Madam Chair. Thank you as well to our witnesses for being here today.
Listening to the comments of our three witnesses today, my own conclusion is that we have a combination—I don't want to be unfair to all of them, for I'm thinking here primarily of Professor Mendes—of legitimate political and policy concerns, with which I will confess I don't happen to agree, and constitutional nonsense masquerading as scholarship.
Professor Mendes, you didn't provide a written text today, or if you did it wasn't translated to be passed out, at any rate, and I don't have your comments written down in front of me. But in your responses to some of the questions you reiterated a series of points in almost identical words to what you said when you were before the legal and constitutional affairs committee of the Senate, in which you proposed a preposterous nightmare scenario. And you should know better.
You had three rhetorical questions. You said:
What would happen the first time a prime minister refused to recommend appointment of a duly elected person under the so-called advisory election framework, if all the others had been appointed?
Second, you asked:
What would the Supreme Court of Canada say about such a refusal if they were ever asked to determine the constitutionality of this process?
Number three, you asked:
What if the court declared the whole process unconstitutional so that those who were appointed were in limbo as to whether they could continue sitting?
Then you went on to elaborate, as you did again, the notion that somehow legislation would be tossed aside; that we would not be in a constitutional crisis in a formal sense, but rather in a crisis in which we have no more rule of law.
This is patently ridiculous—everything you've said here. Let me go through the three rhetorical questions you asked but didn't answer.
What happens the first time a prime minister doesn't appoint a senator?
4:45 p.m.
Liberal
4:45 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Are you going to take this out of my time?
4:45 p.m.
Liberal
The Chair Liberal Albina Guarnieri
Mr. Reid, please, show a little courtesy. We don't have to be insulting. You can make your point; nobody is censoring you. Show a bit of courtesy, please.
4:45 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I thank you.
I just want to go through and provide the responses that I think are appropriate, Mr. Mendes. Once you have that, you'll be able to comment on whether you think I'm right or wrong.
4:45 p.m.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
But can I interrupt?
I want him to keep on abusing me, because it's a sign that someone who sinks to the level of abuse has lost the argument.
So please continue with your abuse, Mr. Reid.
4:45 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
All right; here we go.
The Prime Minister not appointing someone after the process has already started, first of all, is a political question. But the fact is that we already saw that practice engaged in after the first elected senator was appointed. Jean Chrétien proceeded to appoint senators and to ignore the Senate elections that had taken place in Alberta.
I note similarly that following the 1898 plebiscite on prohibition, Sir Wilfrid Laurier chose to not follow the results, although the referendum passed, and he was successfully able to do so. So this could occur; that question is actually answered.
In your second question you asked what the Supreme Court would say. Well, what they wouldn't do is refer back, as you did, to the 1981 reference case in which they said there's a conventional obligation, because there wasn't an amending formula at that time, and there now is an amending formula. So the reference to a conventional obligation that was cited at that time with regard to an amendment to the Constitution, about whether the right formula was chosen, would not actually apply in this case. That's clearly the case; 1981 is before a bright line that occurred legally with the passage of the Constitution and its amending formula.
Number three is what kind of chaos ensues if the court strikes this down. Presumably it would be the same kind of chaos that occurred pursuant to the 1985 Manitoba reference case in which all of their laws were struck down. The courts then sat down and said “You have to re-enact the laws”. They went out of their way to ensure that chaos would not ensue.
I suggest that striking down the law—which I think is extraordinarily unlikely, but if it were to occur—would mean that a new process had to be found, not that laws passed by the Senate with other incumbents elected or appointed under that law are now invalid.
These seem to be me to be reasonably obvious responses.
I finally notice that you didn't cite the 1919 judicial committee of the Privy Council decision, in which a referendum that had been passed by the Manitoba legislature was struck down because it impinged too much on the prerogative of the crown, which is the real issue here. The judicial committee of the Privy Council in that decision pointed out that it is possible, if one is respectful in the formal sense of the prerogatives of the crown, to engage in alternative and more democratic methods of law-making. That seems to be a very relevant precedent.
Thank you.
4:50 p.m.
Liberal
4:50 p.m.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
As I said, I'm not going to sink to the level of Mr. Reid. I think he's demonstrated his ability to stay mature as a legislator in this hearing.
What I will address, though.... I did ask the same questions in this hearing. I asked the same three questions, so I'm glad you raised the point. Again, Mr. Reid, your duty as a legislator is to take account of the risk you are putting forward to the country. You are not the Supreme Court of Canada—neither am I—but it's a risk you have to take into account when you pass legislation.
And yes, there will be consequences, if advisory elections take place and senators are appointed. And if the Supreme Court of Canada pronounces the legislation unconstitutional, they will be severe consequences.
You may have taken to heart the fact that the patriation reference case occurred before the amending formula came in. Well, fine; so did the upper house reference case. Are you dismissing that one too?
Even if we accept your position, as my colleague John Whyte has stated, the clear provisions of the amending formula state that what you are doing is unconstitutional.
I will not sink to your level of abuse, because it demonstrates that essentially you have decided not to talk about the issues, but essentially have sunk to a level I will not go to.
4:50 p.m.
Liberal
The Chair Liberal Albina Guarnieri
May I please request that everybody direct their comments through the chair, and let's maintain the decorum with which this committee has operated to date.
Madame Picard, vous avez la parole.
4:50 p.m.
Liberal
The Chair Liberal Albina Guarnieri
Oh, I'm sorry. Mr. Whyte, would you like to add some comments to the substance?
