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.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
My advice would be both: kill this legislation, but also--
Bloc
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Yes, that is right.
Assistant Professor, Faculty of Law, Laval University, As an Individual
There is a political judgment involved that goes beyond my expertise regarding the appropriate decision in this case. I would say that the message is not necessarily the same. If there is a request for a reference to the Supreme Court, the message is that it might be a good idea to reform the Senate. So, we would be setting the parameters for a future reform. It may be seen as an openness to the idea of talking about the Constitution in this country, and that would be a helpful effect of this bill. If the bill is simply allowed to die, that would put an end to everything. I think it all depends on the message you want to convey.
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
Under section 55 of the Supreme Court Act, the prerogative of reference to the Supreme Court belongs to the Governor General in Council alone. That doesn't mean, of course, that there could not be a resolution of the House of Commons recommending that the cabinet make that reference, but it of course would not be binding, and you could not refer directly.
Should you make that recommendation to the current cabinet? I don't see the point of it. The current cabinet knows that this is available and is either interested in proceeding according to the rule of law, as elaborated by the Supreme Court of Canada, or is interested in failing and maybe blaming or pushing.
I guess I think that this committee is not going to shape the exercise of that prerogative power of the cabinet of the Government of Canada.
Liberal
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Chair, and thank you to all the witnesses we have here today.
Obviously we have two or more conflicting views as to the constitutionality of this piece of legislation. My colleague Mr. Murphy was right. That was a very good question about some of the comments Professor Hogg made, and I have a few more.
Professor Hogg, in speaking of this bill, said:
Bill C-20 stops with the counting of the votes, and the report to the Prime Minister. The Bill does not go on to declare that the successful nominees are elected; nor does it say that they will be appointed. And the Bill does not impose any duties of any kind on the Prime Minister (or the Governor General). Obviously, the Bill assumes that the Prime Minister would be under a political imperative to respect the outcome of the “consultation” that he has ordered, in which case he would advise the Governor General to appoint the successful nominees to vacancies in the Senate. But this is not a legal imperative.
Professor Hogg was quite clear. Obviously all of us probably have in mind what the ideal situation would be. We know that the NDP has views on the Senate, as do the Liberals, the Bloc, and our party, but obviously there are those constitutional constraints. Professor Hogg was very clear that there was not a legal imperative.
To address a point you made, Professor Mendes, I believe that Professor Hogg did consider the scenario whereby the Prime Minister, at some point, after this process had been in place for a while, would be faced with the prospect of not appointing one of those individuals who had been selected. In fact, he says:
I think that's the view the Prime Minister will take. I don't think there's anything unethical or fraudulent about it. I think the Prime Minister will feel the same way as the people who are voting. But the truth of the matter is that the Prime Minister doesn't have to respect the result.
That was in the context of a question about future appointments. Are we saying that Professor Hogg is just flat out wrong? I know that he is an eminent legal scholar. He was quite clear that right now, passage of this bill and also implementation of the bill and also any future appointments flowing from this consultation would be well within the right of this House. In fact, passing this legislation would not infringe on any constitutional issues.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Let me begin by saying that not only is Professor Hogg wrong, but he's not yet on the Supreme Court of Canada.
You as legislators have to take into account the risks entailed in passing legislation. If one of those risks includes the potential for legislation to be struck down by the Supreme Court of Canada, with the attendant consequences of the legitimacy or the legality of sitting senators and the legitimacy or the legality of legislation being passed, that is a serious risk that you as legislators have a fundamental duty to address and not take the word of just one law professor, no matter how eminent he is, or not take our opinions, no matter how eminent we may think we are.
One of the fundamental things that you as legislators have to do is to take into account the potential risks that the country will face from your actions, and this is one area where I think it would be negligent in the extreme not to take into account the potential risks that flow from such legislation, in terms of gridlock, in terms of potential constitutional challenges, and in terms of this legislation being unconstitutional from the get-go, as my colleagues have just said.
Conservative
Rob Moore Conservative Fundy Royal, NB
I do have follow-up questions, if no one has a burning desire to reply.
Mr. Whyte.
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
As you know, a lawyer is someone who can think of a thing or a concept without managing to think of the thing that is inextricably bound to it. That is what we are witnessing here. This act puts in train a process of selecting senators, and we are managing to think of the cabinet sitting there choosing a senator without at all thinking of the process that brought the name before them. It's ludicrous.
Is it legally wrong, though? Yes. The process in Bill C-20, if followed to the letter, will abridge specific constitutional provisions relating to age, relating to requirement, relating to representation. Secondly, the precise constitutional authority assigned to the cabinet to appoint a senate in its discretion is curtailed unconstitutionally by the limitation it has accepted through enacting and applying Bill C-20.
You can argue that it suffers no limitation by virtue of the operation of Bill C-20. It will make its decision independent of its enactment and operation and result of Bill C-20. But no one believes that is true. What is happening is that we are reshaping the way the Senate of Canada is to be formed in the future.
Professor Côté said over and over again, as clearly as could be, that when you reshape the way the Senate of Canada is formed, you are falling within paragraph 42(1)(b) and it would be unconstitutional.
You cannot extricate a process that operates inevitably in the exercise of a constitutional discretionary power and say that it doesn't operate in the exercise of that power. I do not believe the Supreme Court of Canada plays those mind games. For that reason, I think Professor Hogg is predicting this one wrong.
Liberal
The Chair Liberal Albina Guarnieri
Mr. Moore, do you have further questions?
Would you care to respond, Mr. Côté?
Assistant Professor, Faculty of Law, Laval University, As an Individual
I would just like to add that I recently reread an article by Professor Hogg in which he said that during the time preceding the reference on Parliament's jurisdiction with respect to the upper chamber, a number of constitutional experts had testified before a parliamentary committee saying that the federal Parliament could take unilateral action without any doubt, and that, in the end, the Supreme Court of Canada said they were wrong. So there you have it.
Conservative
Rob Moore Conservative Fundy Royal, NB
I do, on the subject of gridlock.
Professor Mendes, someone who you have certainly supported in the past, Scott Brison, speaking on the issue of gridlock, said:
Some people say this creates the potential for gridlock. The competitive friction between two Houses is not a bad thing. In fact, it can prevent politicians from doing dumb things unilaterally unchecked.
I think it's abundantly clear that the issue of gridlock, in and of itself, does not raise constitutional issues. But one person's gridlock is another person's check on decisions that we make in the House. The assertion we would make is that any potential so-called gridlock or any potential ability of the Senate, as a place of sober second thought, to say “We do not agree with what the House of Commons has put forward” is simply an enhancement of the democratic process.
Is there any comment on that, on the fact that I didn't hear anyone make this point? I'd like a confirmation, if my interpretation of what you're saying is in fact true, that the prospect of gridlock, so to speak, does not necessarily raise any constitutional issues in and of itself.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Mr. Moore, I presume your constituency is in British Columbia.
Conservative
Professor, Constitutional and International Law, University of Ottawa, As an Individual
In New Brunswick. Would you be happy with an elected Senate that does not reflect the equality of the regions of Canada, where part of that elected Senate really acts as gridlock against the consensus of all of Canada from the House of Commons? Would you be happy with that situation where the preponderance of senators from one part of the regions of Canada, because of the inequality, would basically stop legislation in its tracks?
I agree, it is as yet not an issue of constitutional validity. But in terms of the functioning of the most democratic institution of this country, it is absolutely critical to address this issue.
Liberal
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
Yes, gridlock will affect a constitutional principle, although not necessarily badly. It's not necessarily worrisome.
The constitutional principle is that the government is responsible to the legislature. It is the core of parliamentary democracy. And when a government is not able to pursue a legislative agenda because it cannot command control of the legislative chamber, it must resign. We've believed that for centuries. It doesn't have to be that way, but that's the way it is.
When we get to two legislative chambers in gridlock, we're going to have governments that can't control the legislative agenda, and we're going to have to think differently about the principles of responsible government. I don't think that's a disaster. I think we could certainly work out principles of responsible government that coped with gridlock.
So in answer to your question, you bet it affects the constitutional principle. Does it affect it disastrously? I don't think so.
Assistant Professor, Faculty of Law, Laval University, As an Individual
I have nothing to add.
