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.
Assistant Professor, Faculty of Law, Laval University, As an Individual
If a decision were made to follow the recommendation made by the Canadian Bar Association, the main question would have to deal specifically with the constitutionality of Bills C-19 and C-20. If the questions were to be too abstract, there would be a risk that the Supreme Court might decide not to make a ruling. That is exactly what happened in the 1980 reference, when the Supreme Court refused to reply to a series of questions that it considered too abstract, and for which some factual evidence seemed to be lacking. In my opinion, the reference should deal more specifically with these specific bills.
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
Madam Chair, with respect to Ms. Fry's concern about provincial objection, there would be the general concern that arises around the central accommodation of Canadian federalism being altered unilaterally.
The very specific concern is to remember that clause 13 of Bill C-20 allows for consultations to occur in the context of a provincial general election. One can imagine a province establishing a general election and having it, so to speak, hijacked by the federal Senate election—a bigger, louder, more weighty election than anything the poor province was trying to pull off. That would be unhappiness. We can predict provincial push-back on that very pragmatic basis as well as on the more theoretical basis.
As for a reference to the Supreme Court of Canada, I think one could just ask them the question: Is it within the legislative competence of the Parliament of Canada to enact legislation that establishes non-renewable term limits for senators and that bases appointments to the Senate on an electoral process taken prior to appointment? That would get to the heart of the issues we're discussing today, and they would give you an answer. It's precise enough, I think, and as I say gets to the heart of it.
Liberal
The Chair Liberal Albina Guarnieri
Thank you, Mr. Whyte.
Your time has expired, Madam Fry.
Mr. Reid, we are back to you.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Thank you, Madam Chair.
My question is again for Professor Mendes.
The central point I was trying to get at in the response I had to the third of the hypothetical questions he posed to the Senate committee was that it seems to me the Prime Minister's prerogative is not what's being discussed here, constitutionally speaking; it's the royal prerogative, the Prime Minister being a legal construction and the crown being a constitutional construction. That's why I cited the precedent of the 1919 reference case vis-à-vis the Manitoba Initiative and Referendum Act.
He didn't have the opportunity in his response to comment on that, so I would be grateful if he could now indicate the degree to which he thinks that precedent is or is not applicable.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Mr. Reid, much as you want me to respond to what you would like to respond to, let me just repeat what I've said: that the attempt to do an end run around the constitutional amendment processes in the Constitution Act of 1982 supersedes any of the cases you have mentioned. It is clear that this is the operative provision this committee should be focusing on. As my colleagues have said, we are in total agreement that those cases you have cited do not take precedence over section 42 or section 38 of the Constitution Act of 1982.
Conservative
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Thank you. I have my own little timer. I forget to set it.
With respect, Professor Mendes, I think you may have the arguments backwards. I was arguing that the case regarding whether or not the patriation reference was no longer relevant because of the fact that we had these amending formulae in place, and therefore that constitutional conventions that had existed at that time had been replaced by the black letter of the constitutional law that now exists, and that part of the reference is no longer applicable.... Although I think it could be argued that the Parliament of Canada can proceed with what is within its legal prerogative unless it is stopped by the fact that it is acting in an ultra vires manner. So I think you have the arguments backwards.
I do think, however, the question here about the royal prerogative is one of the things that would come up in arguments before our Supreme Court. You may not think it's very important, but I'm interested in knowing whether you think it's applicable or not, and if you could indicate what the reasons might be for that.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Okay. Let me be clear. Let me try to be as clear as possible.
First of all, you're wrong in saying the conventions are no longer valid things to think about. You're absolutely wrong about that. The patriation reference case was based on conventions, and because the preamble to our Constitution states that our Constitution is similar to that of the United Kingdom, conventions still play a part. In fact, the very Office of the Prime Minister is a convention that is not entrenched in the Constitution, apart from a very, very small reference to it in one part. The whole concept of responsible government is based on convention.
So all of these conventions that have existed do continue, including the royal prerogative, including conventional restraints on executive power. However, none of them supersede the written Constitution, and in particular none of them can supersede the amending processes of the Constitution.
So where there is a conflict between any prerogative power or any conventional power and the actual details of the written Constitution, and in particular the amending processes, they take precedence.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
The convention I was referring to, Professor Mendes, was the convention regarding consulting the provinces on changes to the Constitution of Canada, and there is no question in anybody's mind that has been replaced by the amending formulae that were set in place in 1982. That's what I'm referring to.
With regard to the prerogatives of the crown, I think you've just made my case for me: that the prerogative of the crown remains effectively untouched by the amendments that took place in 1982. Therefore previous cases that dealt with the prerogatives of the crown are highly relevant, and therefore a leading case on this subject, which is the 1919 case, is entirely relevant.
Therefore, I ask you again how you interpret the applicability of that case to this kind of situation.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Let me try to be really clear. Insofar as any prerogative is not consistent with the amending processes, in particular section 42 and section 38, the royal prerogative has to give way. If there is an indirect attempt to do an end run around the constitutional provisions in section 38 and section 42, that, in my view, will be regarded as unconstitutional and ultimately declared so by the Supreme Court of Canada.
So you may refer as much as you want to that 1919 case. The present situation, under the Constitution of Canada, is that there is no prerogative power—
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Have you read the case, Professor Mendes? Have you read the judgment?
Professor, Constitutional and International Law, University of Ottawa, As an Individual
Do you want to test me on it? Do you want to give me an exam on it?
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Well, I'm curious, because you seem to be avoiding giving an answer to that question.
Professor, Constitutional and International Law, University of Ottawa, As an Individual
I've just given you an answer to the question, Mr. Reid, that that case has been superseded by the procedures of the Constitution. But if you like, maybe after this you can give me a test and I can answer it.
Liberal
The Chair Liberal Albina Guarnieri
As interesting as this exchange is, the time has expired.
Mr. Murphy, you have the last round. I understand the bells are going to go shortly, but you have five minutes.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Thank you.
It's heartening to me that Mr. Reid and Professor Mendes could at least come together on a final point of agreement, in that conventions under our current constitutional framework do exist.
In my first two-part question I guess the answers were mostly concentrated on the deadlock issue, and we delved a little bit into convention. But it is curious to me.... I am a person with legal training; sometimes it's an asset and sometimes it's not. But in this case Professor Hogg—again I'll put it to you as far as I understood it, and I have his verbatim testimony here—was very clear that the convention that exists now with respect to the Governor General appointing senators is really that the Prime Minister suggests names to the Governor General. And no matter how he comes up with those names—out of a hat, coin flip, phone call, selection process—nothing changes. That is what Professor Hogg said, in a nutshell.
Professor Whyte took the view that he was perhaps incorrect because he took too much of a literal, black letter approach to the sections of the Constitution as they meld with the conventions. I'll give you a chance to maybe elaborate.
I would like all three of you to address the question of whether Professor Hogg is on solid ground in that respect.
Secondly, is he correct when he says that it's unsure as to whether a new convention will evolve with the selection process? We all seem to be going down the road, Professor Whyte in particular, that there will be a new convention, that the elections will mandate that the Prime Minister nominate the senators through the Governor General. Professor Hogg in fact said in his testimony that there may be a contaminated election where that may not be the case. Will there be a new convention, if this goes through, that will bind the Prime Minister, and will it therefore become constitutional law?
The second, minor point, if we had a point: Do you think it's therefore important that when we select Supreme Court judges, we ask them their interpretation of whether the Constitution is convention-based or black-letter-based, or whether it should be interpreted in the spirit or be black-letter-interpreted?
Just two light questions.
Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
Conventions are not practices. Conventions are not law. I think when it comes to the question of constitutional amendment, we live—Mr. Reid, I agree with you—in a legal world, in a world of law: the provisions of part V of the Constitution Act of 1982, the elaboration of that in the secession reference, and I would argue the carrying forward of some conceptions around amendment from the Senate reference of 1980. A debatable point, but law.
Is the law being corrupted by new conventions? I don't even think that it will be a new convention that the people who are chosen through this consultation process will be appointed. I think it will be a practice. My point is that when you create a practice through legislation to constrain, to govern—not necessarily absolutely, but just constrain and govern—a clear constitutional prerogative or discretionary power, you are changing that power, the section 32 power. A change is going on. A change is being made.
Professor Hogg and Mr. Reid, through pointing to the Initiative and Referendum Act, are saying that no real change is going on, that there is an absolute, full, section 32, 1867 act discretionary power to appoint people, untrammeled.
Well, that's not the actual case on the ground, and it's not going to be the actual case on the ground. Furthermore, there are all kinds of things about this bill that actually violate more specific provisions of the Constitution. I'm only making this law point—not convention point—that when you construct through legislation a significantly constraining influence on the exercise of constitutionally defined discretion, you are unilaterally altering the constitutionally defined discretion.
I'm not interested so much in the quantum of restraint. I think the restraint is enough. It's heavy. It's burdensome. It's there. At ten o'clock we don't ask when the sun rose. After an election we don't ask when did the influence really hit.
I'm sorry—that's too metaphorical or elliptical. What I'm trying to say is let's not get into the game of asking whether it really does control the outcome. The answer is that it controls the outcome, and that is to alter the power of section 32.
Liberal
Assistant Professor, Faculty of Law, Laval University, As an Individual
I will try to use it wisely.
My last comment has to do with the letter of the Constitution. Paragraph 42(1)(b) talks about the method of selecting senators, not the method of appointing senators. I think that what the federal Parliament does not have the authority to do goes beyond the specific amendment to section 24, it has to do with the entire process regarding the selection of senators. That is what is stated in paragraph 42(1)(b).
That is all I wanted to say.
Liberal
The Chair Liberal Albina Guarnieri
Seeing that the bells are not ringing, Mr. Mendes, would you like to add something?
Professor, Constitutional and International Law, University of Ottawa, As an Individual
I would like to respond to Mr. Murphy's question. I don't think you can create a convention by breaking a constitutional obligation. So that's all.
Liberal
The Chair Liberal Albina Guarnieri
That's it.
Thank you very much.
I'd like to thank the witnesses for bringing their studied perspectives on the constitutional and legal elements of the bill we're studying.
I would like to thank all of you.
This concludes our proceedings. See you all next week.
Thank you.
The meeting is adjourned.