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

[John Whyte]

I don't want to undercut anyone here, Madam Chair, but I do want to say that Mr. Reid mentions two cases, and they are both extremely interesting in this discourse. One is the Senate reference, which he says has been trumped by the 1982 Constitution. It's a good question whether it has. I think he's wrong, but I understand why he would say it.

And I would have thought the secession reference, which also operated in terms of a new written amending formula, but derived its ultimate normative weight from a far prior history of Confederation understanding to give its terms meaning, is some indication that the court will lean back or go back to pre-1982 conceptions of Confederation to understand how to interpret the 1982 Constitution. I don't think it died that sharply. But you're right; it's a different era.

The Initiative and Referendum Act is very interesting, and he is right. That is an act that said that when an initiative and referendum automatically implement a new law, that's unconstitutional; if it's only advisory, it would not be unconstitutional.

That is what is justifying Professor Hogg's decision, by the way: that this is only an advisory—as opposed to automatically an implemented—decision by the electorate. Hence the clause from Mr. Moore: the election is held; it dies.

I think that's not the way the constitutional power in section 32 of the 1867 act will be read, as standing absolutely outside the process that got the cabinet into making the decision.

I agree that the Initiative and Referendum Act represents a bright line attitude that, if followed in this case, would support Professor Hogg, but I think would not be followed.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Professor Whyte.

Madame Picard, vous avez la parole.

[Pauline Picard, Bloc, Drummond, QC]

Thank you, Madam Chair.

I would like to say that I am very sorry that we showed a lack of respect for you. This opinion is not shared by all committee members. Please accept our apologies.

Talking about constitutional law is quite complex when one is not a constitutional lawyer. Nonetheless, I have made note of some of the things you mentioned. One was that in order for this bill to be approved, Quebec's consent would absolutely be required. You said it would be very difficult to amend the Constitution without Quebec's consent. I know that the provinces must also agree to amend the Constitution, but I would like to know which part could mean that Quebec's amendments would delay matters a great deal.

[The Chair, Liberal, Albina Guarnieri]

Would you like to go first?

[Prof. Errol Mendes]

We passed legislation that said that in future constitutional amendments we would have the consent of the regions of Canada after the 1995 referendum, and that includes Quebec. You could basically override that by saying that we'll do it indirectly so we don't need the consent of Quebec. That's my point.

My point is that if we are going to have a sustainable reform of institutions in this country, given everything that has happened we absolutely have to have the consent of the major regions of Canada, including Quebec. If we don't, we're ignoring not just the legislation that we passed after the 1995 referendum but also the more recent announcements that proclaimed the Québécois as a nation. Basically we're saying that we don't need to consult Quebec on one of the most fundamental institutions that has an impact on Quebec. Even from that angle, I think the Government of Quebec has a right to demand consultation, and, if they don't get it, to seek a reference to their provincial court of appeal to stop this legislation.

[The Chair, Liberal, Albina Guarnieri]

Mr. Coté.

[Charles-Emmanuel Côté]

I have very little to add. The letter of the Constitution requires that seven provinces representing 50% of the population, the House of Commons and the Senate must approve a resolution that would introduce such a reform. An additional layer was added after the 1995 referendum, with the legislation on regional vetos, in which the federal Parliament agreed not to pass any resolution without the approval of the various regions. As regards this legislation, Quebec is a region, and that means that its consent would in fact be required, even though, before this act was passed, Quebec's specific consent was not required under the Constitution, in my opinion. This is something that was added during the post-referendum period, when the legislation on regional vetos was passed.

[The Chair, Liberal, Albina Guarnieri]

Mr. Whyte.

[John Whyte]

This is fairly technical.

I think that this present bill creates a selection process for senators that when implemented will not be able to sustain the constitutional commitment in section 22 of the 1867 act that the senators either hold property or reside in the appropriate one of the 24 electoral regions of Quebec. If it cannot sustain that provision, then Bill C-20 is effecting an amendment of a term of a Constitution that applies to one or more provinces but not all provinces and therefore triggers the requirement of bilateral consent. It seems to me highly arguable that Bill C-20 is not valid unless the Province of Quebec consents.

Now, it could be argued that the exercise of appointing senators under Bill C-20 in the case of Quebec will be constrained less by the election and more by the section 22 requirement that the senator hold property or reside in the appropriate district. But as I said in my initial submission, that's going to be a fairly unattractive position for Canada to be in: where elections determine who is a senator for most provinces except Quebec, where the elections count for little.

I think that Quebec in this particular amendment is in a very strong legal position if it wishes to. It may not. In a more general Senate reform process, almost any reform we can think of will abandon that really obsolete provision relating to the 24 electoral divisions and again would trigger section 43 giving requirement to a Quebec veto independent of the seven-and fifty formula.

I think that if we're going to deal with the Senate, we're going to deal with Quebec. And if we're going to deal with Quebec, we're going to deal with 1982. That challenge is what the country is facing.

[The Chair, Liberal, Albina Guarnieri]

Do you have another question, Ms. Picard?

[Pauline Picard, Bloc, Drummond, QC]

No, thank you, Madam Chair.

[The Chair, Liberal, Albina Guarnieri]

Mr. Gourde.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

I would like to thank our witnesses for being here today.

Any amendment regarding the selection of senators seems difficult but certainly not impossible.

How do you think we should go about getting an elected Senate? Given that the Supreme Court applies and interprets laws, but does not pass them, in my opinion, it must take into account the provisions of the legislation that is passed by the House of Commons.

What risk would there be for Parliament if the Supreme Court were to strike down the legislation providing for an elected Senate?

[Prof. Errol Mendes]

As I said, if this bill is passed and the advisory elections take place and the legislation is then struck down, what is the status of those senators who were elected? That is a risk you face by passing this legislation.

None of us knows for sure what the Supreme Court of Canada would say on that, but let's say it did strike it down. That is a serious impediment to the functioning of the most critical democratic institution in this country. For that reason, it is actually critical to get consensus on the constitutionality. Don't take my word for it, no matter how low an opinion you have of me, but try to get a general consensus as to the constitutionality of legislation before you go ahead and pass legislation that runs the risk of seriously imperilling the functioning of one of our Houses of Parliament.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

Mr. Côté.

[Charles-Emmanuel Côté]

The risk that the Supreme Court would rule on the unconstitutionality of this bill, if it would pass, is quite high. As to how to go about establishing an elected Senate—because this is something that could absolutely be considered—the Constitution does provide us with some tools to achieve this objective. The government simply did not choose the right tool. In my opinion, the tool that should be used to establish an elected Senate is the normal constitutional amendment procedure—the 7/50 formula.

[The Chair, Liberal, Albina Guarnieri]

Do you have any comments?

[John Whyte]

I have nothing additional, thank you.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Whyte.

Do you have any other questions, Mr. Gourde?

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

No.

[The Chair, Liberal, Albina Guarnieri]

Do you have a comment, Mr. Preston?

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I have nothing.

[The Chair, Liberal, Albina Guarnieri]

Do you have a comment, Ms. Fry?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you very much, Madam Chair.

I always find it extremely interesting to listen to all the opinions we get from legal scholars, none of which seem to agree with each other in many instances.

That aside, we heard from Mr. Hogg, who very clearly fixated on the letter of the law. I found that interesting, because if you view the law as having a spirit--and courts tend to interpret the law as not based purely on the letter, but on the spirit--then the problem here is that if the provinces were to be involved, or if they were not to be involved, to get around the provincial involvement you wouldn't have to challenge the Constitution. Therefore, this is doing that. This is suggesting that.... We're speaking about certain elements of politics, but you have to bring politics into the issue because it is changing a major institution and the way it functions.

The politics of the thing would say that we do not have to listen to the voter. I am using the voter as an advisory committee, so to speak. Now, provinces may get very involved in an election and therefore may not approve of the fact that this bill is not transparent and seeks to get around the Constitution by stealth--some may think it's a good thing and others may not, as you have all rightly pointed out--and therefore provinces may challenge the validity of the election, the validity of the way the selection occurred, and you could have all this debate and argument that could create a huge firestorm in this country. Is that what we really want?

A bill should be transparent. It should say not only what it wants to do in letter but also what it wishes to do in terms of recognizing the spirit of the law.

Given that on July 20, 2006, the Council of the Federation issued a communiqué endorsed by all provinces and territories and asserting the principle that the Council of the Federation must be involved in any discussion on changes to important features of key Canadian institutions such as the Senate and the Supreme Court, and given that this is not being done because there is no consultation, then we could face that as well; the provinces will feel they were slighted, and so will the Council of the Federation. That's a very recent decision.

The Canadian Bar Association made a suggestion. I would like to know what you think of the suggestion, and if you think it's a good idea, what questions would you put? They suggested that Bill C-20 go to the Supreme Court for the Supreme Court to decide whether it is constitutionally valid according to the spirit and the letter of the Constitution. If you think that should be done and if governments are transparent they would have no problem doing that because then they would be proven to be right or accept that they are wrong, what are the questions you would pose to the Supreme Court?

[Prof. Errol Mendes]

As a member of the Canadian Bar Association, I completely agree with the suggestion by the Canadian Bar Association. I think the simple question that could be asked is what I've said in my presentation: Can you do indirectly what you cannot do directly by amending the Constitution?

Secondly, is a requirement of consultation with the provinces needed that, in keeping with the requirements for the general amending formula, as my colleague John Whyte has pointed out, would have to be triggered to have a proper amendment process?

Finally, I would love a general question to be asked: Can you essentially carry on separate pieces of reform of critical institutions, such as in the Senate tenure bill and this bill, and not link them together? I think that's another critical issue, which is bubbling under the surface.

Those are the three areas I would recommend to the Supreme Court of Canada.