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.