Thank you, Madam Chair.
First of all, I would like to thank you for inviting me. It is a pleasure and an honour to be here today.
Bill C-20 represents a novel attempt at Senate reform that deserves substantial attention. Unfortunately, unlike many bills before Parliament, serious questions arise about whether this piece of legislation is within the legislative powers of Parliament. On balance, I'm persuaded by the argument that Bill C-20 is unconstitutional.
It can be readily agreed that Bill C-20 does not alter any provisions of the Constitution Act. Bill C-20 directly conflicts, however, with the Constitution Act, 1867, in specific details relating to the qualification of senators. These conflicts relate to citizenship, residency, and financial assets. While these conflicts are substantive, they could and should be easily corrected.
On the broader details of the election of nominees, however, there are no substantial conflicts with the wording of the relevant constitutional provisions. However, the constitutional validity of legislation hinges on much more than the absence of manifest conflicts between the wording of an act and that of the Constitution. Fatal conflicts can also involve a clash with judicial interpretations of the substantive content of constitutional provisions.
Potential problems for Bill C-20 arise principally from the Supreme Court of Canada’s opinion in the upper house reference. The court held unanimously that Parliament could not alter any “essential characteristics” of the Senate, and neither could Parliament legislate direct elections for the Senate.
When the Supreme Court examined the issues in the upper house reference, the relevant powers of Parliament were then found in subsection 91(1) of the Constitution Act, 1867. This section declared that Parliament could amend the Constitution of Canada with five exceptions. Read literally, subsection 91(1) appeared at the time to have granted power to Parliament to alter or abolish the Senate, because the Senate is not mentioned in the five exceptions to Parliament’s unilateral powers. Nevertheless, the court ruled that the essential characteristics of the Senate were beyond the powers of Parliament.
Several legal authorities have argued that the repeal of subsection 91(1) and its replacement by section 44 of the Constitution Act, 1982, have rendered the upper house reference moot. It is not clear, however, why this should be so. The essential characteristics referred to by the court that required protection were not mentioned in subsection 91(1). Indeed, they were read into or drawn from the preamble to the Constitution Act, 1867. These characteristics were not changed by the enactment of the Constitution Act, 1982.
Furthermore, the limitations on Parliament’s power to legislate on the Senate were read into subsection 91(1) by the court when no such restrictions were present. The new unilateral amending powers of Parliament found in section 44 now contain several explicit prohibitions against Parliament acting unilaterally to pass amendments relating to the Senate, including the method of selecting senators mentioned in paragraph 42(1)(b). Rather than consigning the upper house reference to the dustbin, the constitutional changes in 1982 appear to actually reinforce that decision.
The ultimate question that must be resolved is whether the indirect nature of the popular consultation process does in fact save Bill C-20. Clearly, legislation to institute direct elections would run afoul of the upper house reference and paragraph 92(1)(b) of the Constitution Act, 1982.
The answer to this question hinges on how literal an approach one takes to constitutional jurisprudence. Some argue that Bill C-20 is constitutional because of the absence of a direct conflict with the legal powers and discretion of the Governor General in sections 24 and 32 of the Constitution Act, 1867. However, there is considerable evidence that the Supreme Court of Canada would not take such a literal, black-letter approach. The history of Bill C-20 and its predecessor, C-43, clearly shows that the pith and substance of the bill is to achieve an elected Senate.
When trying to establish the true nature of legislation, the courts often ask what deficiency the legislature is trying to remedy. In the case of Bill C-20, numerous government statements plainly declare that the problem they wish to address is the unelected nature of the Senate.
It is the government's intention that only those individuals chosen by the electorate will take seats in the Senate. In essence, the remedy provided by Bill C-20 could not be any different than if direct elections were instituted.
Bill C-20 does contain legal discretion on two key matters, which supporters of the measures say are crucial to its constitutionality. There is no obligation—no legal obligation on a government—to hold an election for Senate nominees, and there is no legal obligation to appoint any nominee once they have been declared winners. One can point to the history of senatorial elections in Alberta for evidence that future governments might exercise discretion not to recommend that the Governor General select elected nominees for the Senate. Jean Chrétien and Paul Martin ignored the winners of Alberta's senatorial elections for eight Senate appointments between 1996 and 2005.
However, Prime Ministers may well not be able to ignore Bill C-20 once enacted. First of all, it makes a tremendous difference that this election process would be enacted by the Parliament of Canada and not by a provincial legislature venturing out of its legislative domain. Secondly, a question arises as to how the courts would react to a suit brought by a nominee elected under the Bill C-20 process but overlooked for Senate appointment. Clearly, in my view, the courts would not issue a writ of mandamus requiring the Governor General to appoint the nominee; there simply is no legal obligation under Bill C-20 to enforce.
However, there is every likelihood that the courts would not leave the matter there. In the Quebec secession reference, the Supreme Court could have simply stated that Quebec does not have the right to secession under either Canadian or international law. Instead, the court went on to declare that the Government of Canada would have a moral obligation to negotiate separation if a clear majority of Quebec voters had agreed to separation in a clearly worded referendum. In the patriation reference, the Supreme Court also could have simply said that the federal government can, in law, unilaterally request changes to the Constitution that affect provincial powers, but it went on to declare that substantial provincial consent was required by convention. Thus it is highly probably that the Supreme Court of Canada would also comment on the government's political obligations to respect the people's wishes under the Bill C-20 regime.
It would be all but impossible for a government to ignore the clear wishes of the people in a nominee election process conducted with all the seriousness and substance of a regular election for members of the House of Commons. If Bill C-20 were enacted, it would not take long for a constitutional convention to be established that prime ministers should only recommend elected nominees for selection to the Senate. The democratic principle would impose a moral and political obligation from the outset. In the end, then, the theoretical discretion left to the Prime Minister and the Governor General in Bill C-20 may quickly prove to be a mirage.
In conclusion, for all intents and purposes, Bill C-20 creates an electoral process to transform the Senate from an appointed body into an elected chamber. Bill C-20 represents an attempt to radically alter the essential characteristics of the Senate as it was created and has operated since 1867. The chosen method for this drastic reformulation is also intended to exclude the provincial governments, whose consent would be required if this reform were proposed through a formal amendment. The Senate was a foundational institution in Confederation, over which considerable debate was expended in order to create this country.
In 1982, the first ministers agreed that amendments to the powers and methods of selecting senators should only be done through the general amending formula. As such, the Senate is not something for the national Parliament to radically reform without the consent of the provinces.
Thank you.