Bill C-20 (39th Parliament, 2nd Session) Committee on April 30th, 2008

[The Chair, Liberal, Albina Guarnieri]

Seeing a quorum, I think we'll begin.

Pursuant to the Order of Reference of Wednesday, February 3, 2008, the committee will resume its consideration of Bill C-20.

Welcome back to the committee after a week of immersion in constituency issues.

Before we get down to business, I would like to introduce and extend a warm welcome to our new clerk, Mr. Jim Latimer. He has extensive experience; I'm sure he's no stranger to many of you. I know that I speak on behalf of all members when I extend our heartfelt thanks to our outgoing clerk, Christine Lafrance.

We're privileged also to have a new library researcher, Karine Richer. Welcome.

Today we have a bit of nostalgia for any of you who remember the Special Joint Committee on a Renewed Canada, which I was privileged to serve on in 1992. I can tell you that no one gave us more to think about than one of our guests today with his concept of push-pull federalism. So without further reflection, let me introduce our witnesses: Professor Errol Mendes; the able scholar, Professor John D. Whyte, professor of law, Law Foundation of Saskatchewan, University of Saskatchewan; and appearing via broadband--this is probably a modern version of being here in spirit--Charles-Emmanuel Côté, assistant professor of law, Laval University.

Without further ado, I'd like to turn the floor over. We're beginning with you, Professor Mendes.

[Prof. Errol Mendes, Professor, Constitutional and International Law, University of Ottawa, As an Individual]

Thank you, Madam Chair.

I am going to present my ideas in English, however I would be glad to entertain your comments and respond to your questions in French. Thank you.

I suggest that Bill C-20, entitled the Senate Appointment Consultations Act, is giving a false impression to the regions of Canada, especially western Canada, that substantial democratic reforms are being attempted by the present government to do indirectly what cannot constitutionally be done directly under our Constitution. As many experts have pointed out, this act will entrench, enlarge, and enliven not the triple-E Senate that Bert Brown talks about, but the gross inequality of western Canada, the provinces, and indeed even Ontario in the Senate.

Let me explain further. The present distribution of seats in the Senate reflects the Canada of the 1860s. Due to the then population figures and the participation of the founding parts of Canada, the maritime provinces, Ontario, and Quebec each got 24 seats. Newfoundland, on joining Canada, got six seats. British Columbia, with a population now of four million, and rapidly growing, has six seats, while Nova Scotia, with a population of less than one million, has ten seats. Prince Edward Island, with four seats, has 21 times more power in the Senate than British Columbia, taking into account population. Alberta's growing population is also under-represented. Even Ontario may rightly feel unequal, as it has only 22% of the seats, but 40% of the population. However, this is expected of a federal government that attempts to deny Ontario's significant number of House of Commons seats under Bill C-22, which I have a lot to say about, given the opportunity and time.

So if the Prime Minister goes ahead with this major betrayal of the spirit of the triple-E Senate, or anything that vaguely resembles it, it would add to the democratic legitimacy of the inequality of western Canada. Indeed, any further attempts at constitutional change to redress the inequality could be blocked by the elected senators of the smaller provinces, in perpetuity.

In addition, the elected senators will rightly feel they have as much legitimacy as the elected members of the House of Commons to veto legislation, which again would put western Canada and Ontario at a disadvantage, not to mention the possibility of a gridlock. Bill C-20 has no provision on how to resolve an impasse between the two Houses. It is indeed astonishing that this could have been overlooked.

A disguised election for the Senate would be, in my view, an unconstitutional attempt to circumvent the express wording of section 42 of the Constitution Act, which clearly states that the general amending formula in subsection 38.(1)--namely the Parliament of Canada, plus two-thirds of the provinces, representing 50% of the population--applies to the powers of the Senate and the method of electing senators. In my view, Bill C-20 is an attempt to do indirectly what cannot be done directly without the clear instructions of section 42. It is patently unconstitutional.

I am aware that the Government of Quebec and indeed other provinces agree with this legal opinion, and that alone should give pause to the federal government, which has so enthusiastically passed the motion recognizing the Québécois as a nation. Surely that nation should be consulted and have a say over one of the Houses of Parliament that oversees legislation that could affect that nation.

It should also be noted that the House of Commons legislation gives a federal veto over constitutional amendments to Canada's regions, following the 1995 referendum in Quebec. Should not that veto power now extend to all the regions of Canada in an attempt to change the Constitution, whether directly, indirectly, or by stealth?

It should be kept in mind that the Supreme Court of Canada, in the famous patriation reference case, informed Prime Minister Trudeau that he would breach constitutional conventions if he did directly what he could do directly--namely, seeking the repatriation of the Constitution without the substantial consent of the provinces. In this case, we may have a more serious attempt to do indirectly what cannot be done directly under the constitutional conventions of this country and indeed under the Constitution Act of 1867.

There is even a question, in my view, as to whether the federal government has any jurisdiction under section 91 of the Constitution Act of 1867 to pass legislation that is intended to do indirectly what it cannot do directly. It is hardly a power under the peace, order, and good government provision to undermine the existing amending provisions of the Constitution.

Some justice department lawyers and other constitutional lawyers advising on this bill have argued that as long as the Prime Minister retains his discretion under the existing Constitution to recommend to the Governor General who shall be appointed to the Senate, an advisory federal election framework would be constitutional.

I would like to ask those experts, what would happen the very first time the Prime Minister refused to recommend an appointment of a duly elected person under the advisory election framework if all the others who had been so elected were appointed? What would the Supreme Court of Canada say about this refusal to appoint someone who has been elected? 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? What would happen to the legislation that the Senate, which may have been partially elected, had passed? Would it be valid, or would it be null and void?

The enormity of these potential consequences requires, at a minimum, a broad consultation with all the partners in the Canadian federal state, and preferably a reference to the Supreme Court of Canada regarding the constitutionality of the entire framework, not only of this bill but the attempted Bill C-19, which deals with the eight-year limited term for senators, on which the Senate, in my view, rightly withheld judgment until the Supreme Court of Canada pronounced judgment.

The greatest of ironies lies in the professed reasons for introducing this bill. It refers to the need for Senate reform to reflect the democratic values of Canadians, one that equitably reflects Canada's regions, and to maintain the Senate as a chamber of independent, sober second thought. I suggest that if this bill passes, it will entrench regional inequality, create democratic gridlock, not enhance the democratic values, and even call into question the independence of the not really elected senators.

As has been pointed out by Chief Electoral Officer Marc Mayrand, there are problems even in the political financing aspects of this bill. While party-sponsored advertising is not permitted under this bill, there is a possibility of massive spending in the transfer of goods and services, which, again, could make them beholden to deep pockets for the elections.

In addition, the House leader, Peter Van Loan, in introducing the original version of this bill, argued that it was the accumulation of the historic struggle for the rights of women, minorities, and aboriginal peoples to vote. Will they be represented under this framework if it passes? Undermining the Constitution is hardly a democratic value of Canadians. And the bill also, as I've mentioned, entrenches the inequity of Canada's regions.

Perhaps most ironically, the principle behind the consultative election for the Senate is that it reserves the right of the Prime Minister to ignore the results of the vote of all Canadians. That is hardly democratic. This may lead many, especially those in western Canada, and perhaps even in the rest of Canada, to the conclusion that the real reason for this attempt at an indirect and, in my view, unconstitutional amendment is to create an illusory perception of actually doing something on Senate reform for election purposes.

In my view, it is very dangerous to play politics with the most fundamental documents and institutions of this country.

Thank you, Madam Chair.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Whyte, you have the floor.

[John Whyte, Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual]

Thank you, Madam Chair.

I want to begin by saying that it is a great privilege to be invited to participate in the deliberations of a national government, and I thank you for this invitation.

There is no doubt that the composition of the Parliament of Canada is anomalous. It is unsuited to prevailing principles of political legitimacy. This unsuitability arises from the appointment, not the election, of members of one of the two legislative chambers in a bicameral legislative arrangement; that is, a legislative arrangement whereby each house has the right to veto legislation.

It might be a mistake, however, to see this situation as an acute derogation from the democratic principle as it is typically worked out in complex rule-of-law states. There are always competing statecraft considerations, some that make the appointment of senators tolerable in a democratic state.

First, senators are appointed by the government, and therefore appointments reflect majoritarian preferences. They hold office for life, so the Senate provides a forum less dominated by intense political rivalry that arises from imminent elections. In recognition of the higher democratic legitimacy of the Commons, the Senate is generally careful and restrained in its exercise of veto.

The purpose of the appointed Senate is to represent divisions, regional and provincial, that are less well reflected when there are closer party ties.

The function of the appointed chamber is to consider legislation on bases less partisan than those in the Commons, in which the defeat of a measure can trigger an election.

As Bill C-20 says, it is “a chamber of independent, sober second thought” and there is a good reason for it. Indeed, the composition of the Senate is anomalous, but it is not statecraft without good purposes. It is not something that a democracy like Canada cannot tolerate.

Nevertheless, the case for changing it in order to establish ongoing democratic accountability for legislative actions is strong. A democratic state is one in which popular approval of lawmakers is the norm.

But the changing of the Senate needs to be carefully considered. My friend Professor Mendes has already told you what he thinks are the possible downstream imperfections that are likely to be produced by this change and other changes.

Here are some sensible questions. If elections are not for a term, but until age 75, in what way is ongoing democratic accountability actually enhanced? If term appointments are for 15 years non-renewable, again how is accountability enhanced? Is not the basis on which senators are currently appointed their support by a political party? And is that not the same basis upon which we put people on a ballot for election? And is not the appointer of the senators the party that generates the most votes? And are those not exactly likely to be the senators who win in the consultation process? Are we actually changing anything?

If the Senate is designed to reduce partisanship in the consideration of legislative proposals, will the proposed electoral process undercut that aim? If the Senate is meant to reflect regional interests, will the force of party discipline and loyalty that is generated through elections diminish that purpose? If the fact of appointment of senators creates a restraint on the Senate to not normally frustrate the Commons, will this restraint disappear with electoral choice? Will the rules of responsible government collapse? Will the underlying requirement that a government must be able to achieve its legislative agenda disappear?

But as sensible as these concerns are, as appropriate as it is to worry about what we might be doing with Bill C-20, the bigger question is actually about process. In the past 22 months the nation has been faced with three government initiatives of major constitutional significance with respect to the basic structure of our national Parliament: the idea of term limits on Senate appointments; the refusal, except in one case since the formation of the current government, to fill Senate vacancies; and finally, the establishment of electoral consultations for the appointment of senators. Each of these initiatives presents serious questions concerning constitutionality.

I believe the first violates section 38 of the Constitution Act, 1982. The second clearly continues to violate by the day section 32 of the 1867 Constitution, where there is a mandatory requirement to appoint senators on vacancy. And the last, the one we're considering today, violates sections 42 and 38 of the 1982 Constitution.

Moreover, each alters or will alter the way Parliament works, the way the branches and agencies of the national government represent and reflect interests, the way that interests will be accommodated, and the way political relationships operate. All of these changes in the structure of government are occurring without analysis, debate, or choice among alternatives. We are experiencing an attempt to reconstitute the national Parliament in the absence of constitutional discourse. This makes sense, of course, if the government wishes to precipitate change, any change, but is indifferent to the effects of that change, notwithstanding the permanence of the changes that are being made.

One of the reasons we have a Constitution and a constitutional amending process is to force governments that simply wish things were otherwise not to unilaterally make changes without reasoned debate and the careful building of consent that is meant to be part and parcel of constitutional politics.

It may be that it is cumbersome or inconvenient to amend the Constitution to provide for an elected senate, but making it cumbersome and inconvenient to change a law or process is of course the purpose of putting that law or process into the Constitution in the first place. The inconvenience of changing the law is designed precisely to force us to have those inconvenient conversations that we might not otherwise have, except for the fact that for one reason or another our predecessors judged it was important that we do so.

In this case, we know the reason of our predecessors. It was part of the Confederation bargain with the existing political communities of Canada—an agreement, by the way, whose force and moral meaning in our nation is not spent. Our fidelity to the constitutional text and process dictates that we live with the determinations made by our predecessors. If we want to change Canada’s Parliament, we must engage in the constitutional processes set out in part V of the Constitution Act, 1982.

I don't want to be naive about this. Intergovernmental constitutional reform of the sort required by sections 38, 41, and 42 is likely to be held up by traditional demands: from Quebec, amendments that could produce Quebec’s consent to the 1982 Constitution; and possibly, through convention, from national aboriginal organizations demanding participation and inclusion in the reforms.

Of course, it might be even more difficult than we imagined. Any change to the Senate may well affect the provisions relating to Quebec alone, the ones relating to regional representation from within the province, and might not be satisfied merely by consent of a seven-and-fifty formula but would require Quebec's actual consent. I don't mean to minimize the difficulty.

This difficulty gives rise to the belief that there must be some route for legislated Senate reform. But there isn’t. We need to be nation enough to conduct these inconvenient discussions. We might benefit from them.

When I spoke to the Senate a year or so ago on Bill S-4, I said that the situation of general discomfort with the current Senate, the apparent small space available for unilateral constitutional amendment, the simple appeal to democratic values, and the mistaken popular sense that the Senate is not terribly significant in national governance have all worked to license constitutional reform that may be initially appealing but is being pursued, I think, irresponsibly.

Turning specifically to Bill C-20, the plan to seek electoral advice on whom to appoint to the Senate is quite simply a change in the method of appointing senators: the precise language of paragraph 42(1)(b) of the Constitution Act, 1982, the precise matter that is precluded from unilateral federal change.

There are four reasons legislative reform through Bill C-20 is constitutionally difficult.

First, paragraph 42(1)(b) talks of the ”selecting” of persons for appointment, not the means of appointment. The method of selection will now be that government will consider—and under the normal imperatives of electoral politics—only those who win elections to determine who should be selected for Senate appointment.

Is it not ironic that in seeking to justify this initiative to democratize the Senate, the reformers assert, and must assert, that they do not at all consider themselves to be bound by the democratic process they now so badly want?

Second, by section 32 of the Constitution Act, the discretion to determine who is fit and qualified to be appointed to the Senate is assigned to the federal cabinet--it says the Governor General, meaning the cabinet. Bill C-20 has constructed an electoral mechanism to advise the Senate as to who should be appointed.

A clear constitutional responsibility specifically assigned to a particular agency of government is to be eroded or constrained by another element of public government--the electors. In administrative law we say that the statutory decision-maker has declined its jurisdiction, or it has submitted to dictation from an external source, or it has fettered its discretion. These actions are all ultra vires.

Of course, it will be argued that the consultation process and its results will not curtail cabinet discretion, and that consultation is not designed to limit the list of those considered for appointment, but to add names to that list--one that also contains names not resulting from election.

If one reads Bill C-20 one will see it is not believable that consultation will not determine for the cabinet who is to be selected. The size of the process; the visibility of the process; the context of a federal general election and its heightened political engagement, in most cases; the political energy and the higher public attention paid to province-wide votes--bigger votes than any member would ever experience--all preclude the possibility of cabinets disregarding these electoral results.

The saving clause of Bill C-20, that this process is to ascertain the preferences of electors on appointments to the Senate “within the existing process of summoning senators”, does not save the bill’s constitutionality. Indeed, the precise process of summoning--orders in council--is not altered. It is the method of selecting senators for summoning that the government seeks to alter, and that is exactly what paragraph 42(1)(b) states must be accomplished by formal constitutional amendment.

Third, the electoral process in the bill does not satisfy the specific requirements relating to appointing senators from Quebec. Arguably, the cabinet could overlay the electoral process in the new act with the constitutional constraint that all Quebec appointments will match the electoral districts to be represented, but in province-wide elections this is not likely to be possible, barring, of course, the decision to simply ignore subsection 23(6) of the Constitution Act of 1867. In fact, that would have to happen, since Quebec would not tolerate a voting system that was not followed in Quebec alone.

There are other differences between Bill C-20 and the Constitution. There are differences relating to qualifications, citizenship, and age. There's the difference between section 32, which makes appointments mandatory, and Bill C-9, where it makes the convening of a consultation process discretionary. There are significant differences between the constitutional requirements and the process established by Bill C-20. This is not necessarily unconstitutional. In operation, the chances of its being unconstitutional are almost absolute, but it is not necessarily unconstitutional because it's possible that the administrators of Bill C-20 will ignore, in order to comply with the Constitution, all its provisions. This seems unlikely.

Finally, the Constitution is not a tax code. It requires fidelity to its structures, its relationships, its designs, and its principles. The proponents of the amendment have admitted that they are unable to institute an election process since they have taken what is obviously an election process, kept all its attributes, and then changed it to a “consultation”. Then, in the “whereas” clauses, they seek to deny both the purpose and the effect of the legislation. The process they call consultation is in fact an election in everything but name.

It would bring Parliament into disrepute, and it would do grave damage to the Constitution, to our constitutional commitments, and to the rule of law, if Parliament attempts an obvious and self-confessed sleight of hand to amend the Constitution in contravention of amending provisions.

[The Chair, Liberal, Albina Guarnieri]

Mr. Whyte, could you just quickly wrap up?

[John Whyte]

I have one more sentence.

[The Chair, Liberal, Albina Guarnieri]

Very timely.

[John Whyte]

As subclause 2(2) of the bill states, “Words and expressions used in this Act have the same meaning as in the Canada Elections Act unless a contrary intention appears.” Well, it doesn't.

Thank you.

[The Chair, Liberal, Albina Guarnieri]

Thank you very much, Mr. Whyte.

We'll proceed to Mr. Côté. Vous avez la parole.

[Charles-Emmanuel Côté, Assistant Professor, Faculty of Law, Laval University, As an Individual]

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.

[The Chair, Liberal, Albina Guarnieri]

Merci, Monsieur Côté.

We'll begin with our first round.

I'd like to ask members to make every effort to be concise and keep within the timeframe simply to allow every member to ask a question, because we've got a long list here. Please be good enough to direct your question to the individual or individuals you'd like to have answer.

Thank you.

We'll begin the first round with Mr. Murphy.

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

Thank you, Madam Chair.

I want to begin by saying that I agree with the commentary made by all three of our experts today. I have two crisp questions for each of them, and I'll attempt to keep my questions very short so there'll be time for adequate answers.

I think, Professor Whyte, you put it well—that the Senate now is generally carefully restrained. And Professor Côté, you put it well when you said that in the new beast, under the Bill C-20 regime, the senators might feel, since they were elected, just as legitimate as members of the House of Commons. So with two competing equally powerful houses and no real system for the elimination of gridlock, what would be the outcome?

The second question is a little more intense, I think, from a legislative point of view. Professor Hogg was here. He's widely respected. He said very clearly that although the vote in the selection process would likely be in all cases respected by a Prime Minister, this would not, however, violate section 24 and would not violate section 42. It is just another way of selecting senators, which is now not delineated in section 42(c). It's just a convention. Perhaps a new convention would arise that every prime minister accept the results of the election process for senators, but that's not the case. And he says this in very black letters, I might add. This is a sort of immunization; a good lawyer will do that, expecting that the other side will glom onto Hogg and disrespect your view with respect to interpretation.

The idea—and Professor Hogg was very clear—is that the Prime MInister and cabinet still suggest to the Governor General, who actually appoints senators, and there's no change because the Prime Minister has that parachute, where he has the right not to respect the outcome. What do you say to that?

[Prof. Errol Mendes]

Let me try to be brief, because I know that my colleagues will probably want to add to what I say or repeat what I say.

Firstly, if there's any reason basically to throw away this legislation it is the gridlock aspect. Think about what could happen if, as you say, Mr. Murphy, the Senate felt that it could veto almost everything the House of Commons does. We decry what happens in the Congress, and we have the potential to have even worse here.

Going to Peter Hogg, much as I respect his opinion, I think he failed to ask the critical question of what would happen if the Prime Minister refused to appoint someone after they had been duly elected. Given everything that my colleague John Whyte has said about our having gone first through the entirety of the federal electoral apparatus, if a prime minister, despite all of that, were then to say no, I will not appoint you to the Senate, then I can see that person going straight to the courts and asking that the courts declare the whole process unconstitutional--or that they be appointed to the Senate. It has the potential for constitutional chaos.

[The Chair, Liberal, Albina Guarnieri]

Mr. Whyte, do you have anything to add?

[John Whyte]

What a steep threshold to get over.

With respect to two electorally legitimate houses coming to different conclusions on a measure, clearly that would pose a threat to the theory of responsible government and the fundamental constitutional requirement that the government be able to manage a legislative agenda in the legislative chambers.

I think the answer to this problem as we face it, and as other nations have faced it, is a set of conventions, perhaps conventions relating to committee negotiation or a joint committee to negotiate differences in bills, as they do in Washington. Perhaps there will be a convention that the failure of a government to manage a legislative agenda due to the intransigence of the Senate does not express lack of confidence.

There are a number of conventions that could evolve around how responsible government works in a bicameral legislature in which both houses are elected. These will evolve. I do not think this will be beyond managing.

I think there will be moments when it feels like we're close to a constitutional crisis, such as in Australia in 1975, but I do not think they will be frequent and beyond managing. In truth, as a nation we must all be aspiring to come to an age when we have democratically elected legislatures across the piece. So we should face that future.

On the second matter, there is a theological difference between Professor Hogg and us, I guess. Professor Hogg is a very well known and respected constitutional lawyer—and by the way, his view was echoed by Dean Patrick Monahan, his successor at Osgoode Hall, who has the same position. They are, with all the kindness I can muster in the world, well-known, black-letter constitutional lawyers. Other constitutional lawyers live by the spirit of the Constitution. They see the Constitution as representing an expression of where a nation is at a certain point in its narrative, and that sets a guideline that can drive the nation as it goes forward in terms of moral commitments and honourability.

The agreements made in 1867 and 1982 are agreements that we the people—and I know this is an attenuated conception of we the people—decided to live together this way, with these moments of mutual respect and these understandings of how power will be exercised. You cannot abridge these and maintain the integrity of the Constitution in the minds of Canadians. There's a spirit to the Constitution, and Professor Hogg fails to grasp it and its fundamental importance to Canada as a good state.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Whyte.

Mr. Côté, I can see that you are writing something. Do you have anything to add?

[Charles-Emmanuel Côté]

Yes, I do. I have a comment to make in relation to both questions.

As far as a mechanism to break through any potential gridlock is concerned, I believe that, for the time being, the only mechanism we have is cited in section 26 of the Constitution Act of 1867, and that is for the Prime Minister to potentially appoint up to eight additional senators. In order to exercise this authority, would he use senators on the list, or would he proceed in a traditional manner? I don't know the answer to this. And it is indeed an important question.

I'm aware of some of the details surrounding the crisis in Australia in the 1970s. Despite the fact that there was a mechanism in place for such deadlocks, Australia experienced a serious constitutional crisis. Clearly, proceeding with the consultative election of senators without thinking further about a mechanism to break through a gridlock poses an additional problem, in my opinion.

I obviously have a lot of respect for Professor Hogg, and I have learned a lot from his books. I have a broad understanding of the arguments he gave in his testimony, and it is my sense that he has opted for an extremely strict interpretation of the exclusion of the federal Parliament's authority based on paragraph 42(1)(b) of the Constitution Act of 1982. In my opinion, as far as the senator selection process is concerned, the act has a far broader scope than simply the power of the Governor General to summon an individual to the Senate, which is provided for in section 24 of the Constitution Act of 1867. I think that the 1980 reference clarifies this text, which is already clear. It makes it evident that the intention was to remove from the federal Parliament's jurisdiction far more than any simple technical amendment to section 24. The context clearly demonstrates, in my opinion, that the drafters' intention went beyond that, and they intended to limit even further the federal Parliament's jurisdiction in such matters.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you very much.

Mr. Hogg was not the only one to have such an opinion. Mr. Fabien Gélinas defended more or less the same thesis, basically saying that from a legal standpoint the government had found an indirect way of doing what it was not able to do directly. The fact remains that according to these two individuals, Bill C-20's constitutionality is legally defensible because there is no obligation to appoint senators selected in the consultative process. Rather, it involves, quite simply, changes to issues that fall under Parliament's areas of jurisdiction.

I'm not an expert in constitutional matters, and my knowledge on the subject is quite limited, in this particular case. Jacques Gourde even admitted at the last meeting that he was not a specialist either.

I'd like you to explain to us exactly what would fall under the jurisdiction of the House of Commons should there be Senate reform or constitutional amendments. That's very much what Mr. Hogg and Mr. Gélinas focused on. And I admit that I didn't really understand.

[Charles-Emmanuel Côté]

To begin with, I would say that the 1980 opinion to some extent clarified this issue. Among the questions asked of the Supreme Court which remained unanswered due to a lack of evidence was whether the federal Parliament could unilaterally change the name of the Senate. In my opinion, and I'm saying this for argument's sake, any change to the name of the Senate may be the unilateral prerogative of the federal Parliament, which may change the name to, for example, the House of the Provinces or the Regions, or the House of the Federation. This would simply involve a name change.

Moreover, there are criteria with respect to senators' qualifications which, in my opinion, may be unilaterally altered by the federal Parliament. Paragraph 42(1)(c) states that the following is not within the federal Parliament's jurisdiction, and I quote:

(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualification of senators;

Therefore, the conditions with respect to their assets or property may, in my opinion, be unilaterally modified by the federal Parliament, to the extent that that would not affect the Senate's powers. There is nevertheless scope for minor changes and internal matters.

Now, there is the matter of appointing a Président of the Senate, as opposed to an orateur. That's a poor translation, and the French word Président is more appropriate. So, at the time, the Constitution Act had to be amended to make this change. These are the types of quite minor changes which may be made.

[Pierre Paquette, Bloc, Joliette, QC]

I would like to allow others to add to what Mr. Côté said. I would like to know whether the House of Commons has ever passed any legislation that changed the Senate.

[Prof. Errol Mendes]

First of all, I would like to say that I agree completely with Professor Côté.

The only legislation I can think of reduced it from lifetime to age 75, but that was with the consent of the Senate also.

I want to add one more thing to the discussion so far.

The idea that you can take a convention, as Professor Hogg and Professor Monahan have done, and try to say that it will arise over time ignores the fact that something very significant happened with the patriation reference case when Pierre Trudeau tried to repatriate the Constitution without the provincial consent. I'm sure you remember that.

The court actually said to him, “Yes, you can do that legally”--that's something people don't realize, that you can do it legally--“but there are conventions that stop you from doing it, and you have to get a substantial consent of the provinces if you're going to do that.” He was basically told you cannot do directly what you can do directly, whereas here the government is attempting to do indirectly what it can't do directly.

In my view, there's actually a convention arising out of the patriation reference case that stops them from passing this legislation in the first place. That convention kicks in right away, which stops the ability of the federal government to do this without the proper amending process and, as I've said, without the proper consultation with the provinces, including Quebec.

[The Chair, Liberal, Albina Guarnieri]

Mr. Whyte, would you like to add something?

[John Whyte]

I'm not interested in saying that this bill is unconstitutional because it breaches convention. I'm interested in saying it breaches the Constitution because it is illegal.

Those lawyers who say this is just the Government of Canada--and the House of Commons and the Senate, if it passes--doing indirectly what it cannot do directly, with respect, seem to me to be people who have not read the secession reference, who have not read Sparrow, who have not read Oakes, who have not read Haida Nation. Are they reading the Supreme Court of Canada?

The Supreme Court of Canada isn't interested in what people can do indirectly when they can't do things directly. The Supreme Court of Canada for 20 years has been trying to preserve the constitutional integrity of this nation through standing up for the structures that were put in the Constitution and ensuring that they are honoured and not eroded and not bypassed. We are not living in a jurisprudential age in which we are parsing small technical differences; we are trying to preserve a constitutional arrangement and trying to get constitutionally mandated consent for the restructuring.

It happened, if at all, initially in the 1980 Senate reference. At that time the Supreme Court of Canada said that when you change an institution of the national government as fundamental as that, you've got to take account of the interests that are constitutionally recognized that are being affected by this and get their participation.

These are rules of law.

[Pierre Paquette, Bloc, Joliette, QC]

I would like to ask a question, Mr. Chair. Since we are a legislative committee, we will have to make some recommendations to the House of Commons. Should we recommend that the bill be referred to the Supreme Court immediately to determine whether or not it is constitutional, or should we rather recommend that the bill be withdrawn and that we move on to something else?