Bill C-20 (39th Parliament, 2nd Session) Committee on May 7th, 2008

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Madam Chair.

Pursuing the discussion of conventions a little further, my understanding of a convention—and I am prepared to be corrected if I have understood them incorrectly—is that fundamentally what distinguishes a convention from any other principle is that it is enforceable by public opinion. If public opinion is willing to tolerate a divergence from what had appeared to be a convention, then in fact it wasn't actually a convention, if public opinion is not willing to accept that.

I don't mean public opinion in the sense of public opinion polls; I mean public opinion as expressed at a more fundamental level—for example, at the next election. Then it suggests that the convention either exists or doesn't exist based on that. Do you understand convention differently than that, or do you understand it the same way I do?

[Prof. Andrew Heard]

I think there is quite a complex role that public opinion plays in conventions. I wouldn't agree with a blanket statement to that extent. I think public opinion is sometimes very difficult to know on a specific event, and particularly in reference to an election—whether an election either casts doubt on a past government's actions or legitimizes them.

One of the problems we have with our electoral process is that we have no idea, and it is very difficult to know, if there is majority support for a particular action or against a particular action, because governments are elected to majority position without a majority vote. So it's very difficult to interpret raw election statistics as to whether or not they support what has or has not happened.

The other thing about conventions is that, I would say, there are times when governments get away with something, and in hindsight and over time it's quite clear that a convention was broken. Whether or not there was a public outcry at the time, the consensus afterwards is that the government should not have done something or the government should have done something. Public opinion at a particular time is informative for us to try to determine whether a convention exists, but it's not determinative in and of itself.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Professor Heard, I had actually put the question in a general sense to all the witnesses, but I'm glad you answered it, because I wanted to ask you the following question.

I wasn't sure if you were suggesting that the creation of a convention or a law that will likely have the effect of creating a convention is a basis on which one would judge the constitutionality or unconstitutionality of the law. That is, if it aims to create a convention or has the practical effect of creating a convention, this in and of itself would be a basis for saying it is unconstitutional—where the law might otherwise not be unconstitutional.

[Prof. Andrew Heard]

The courts have at times used conventions to understand the effects of the legislation or understand unwritten aspects of legislation. They have, at times, used convention to enforce the relationship between the cabinet and the House of Commons, so that you can deal with someone as a cabinet minister through legislation that deals with them as a member of the House of Commons because of the convention of responsible government.

They have, at times, used convention to understand and make judgments about the constitutionality of legislation. There are limits to what they do with that, definitely. What they are concerned with is the effect of legislation to a significant extent, and where conventions can help understand the effects of the legislation, then they will bring them into consideration.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I hope you understand why I'm asking these questions, because the argument has been in the air.

I don't know if anybody has formulated it overtly, but the degree to which these elections are binding, or become de facto binding, seems to be viewed by some of the people who have appeared here as witnesses, and in some of the questions, as being a consideration as to whether or not the law winds up becoming unconstitutional. This is despite the fact that nobody would make the argument that the royal prerogative, in the purest black-letter sense, is being violated.

Clearly, on paper at least, the crown retains its absolute discretion, in much the same way that the crown retains the discretion it has failed to exercise for 300 years to refuse to sign laws into effect after both Houses of Parliament have passed them.

I'm trying to get clarity on that point, simply because that could affect how one were to deal with the legislation, how one were to try to amend it in order to make it constitutional, etc. I guess I've made that more as a comment than a question, but I suppose that would probably invite some comment from you, so I might invite that.

[The Chair, Liberal, Albina Guarnieri]

Mr. Watts.

[Prof. Ronald Watts]

I'm inclined in a situation like this to almost come with a counter-question, that is, if one judges from the preamble of the bill that the essential objective is to democratize the process, why do we defend it by arguing that the democratic aspects can be ignored? We're talking out of two sides of our mouths here. We say that the whole idea is to democratize the process, but we defend its constitutionality by saying, “But of course we don't have to be democratic in the way we use it”. I just don't understand that double-talk.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I suppose the answer to that is, there is a very strong popular will to have a more democratic Senate and there is a constitutional injunction against having a fully democratic Senate. That would be the answer to your question, Professor Watts.

[Prof. Ronald Watts]

My response would be, well, then, change the Constitution. The Constitution is not sacrosanct. Yes, we've had problems in the last three, four decades, in changing the Constitution, but in a discrete, particular area like this, I think the Constitution is not immutable. It's meant to be adjusted to fit the developments of the country. I would argue that's where the change should be made.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I appreciate that, and I just want to make the point here that you have switched from making a constitutional argument to making a political argument, and that is that it is desirable to change the Constitution. We ought not to regard it as sacrosanct; we ought to be willing to open it up. These are all political arguments. They are not, as far as I can tell, constitutional arguments.

I do think for the purpose of trying to go through the exercise that this committee has to go through, it will be important for us to distinguish between the political argument as to whether this legislation is desirable and the constitutional argument as to whether this bill is constitutionally permissible.

[Prof. Ronald Watts]

By all means, make the distinction, but the constitutionality is not the only issue here. It's the desirability that is expressed in the preamble. It's a political bill; it's not just a constitutional bill.

[The Chair, Liberal, Albina Guarnieri]

I don't want to neglect Mr. Simeon.

Would you like to add to this debate?

[Prof. Richard Simeon]

Can I just add something to that?

I agree completely with my colleagues that very quickly, once this bill is passed, it would become politically very, very difficult for the Prime Minister not to accept the result of an election. But I think at the beginning the sanction for that would be political. It would be a convention in the sense that it was expected by most political actors, and the Prime Minister would pay a price if he didn't do it. But I think it would take a certain amount of time--and for that to happen repeatedly--before the Supreme Court would use convention in the harder sense that it has solidified into a judicially enforceable convention, that it has become part of our Constitution. My guess is the Supreme Court would take a while before they said it's become a convention in that second sense.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Savage, the next round is five minutes.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Thank you very much, Madam Chair.

Thank you to the speakers. This is not my normal committee, but I'm very interested to be here, and I appreciate the fact that you brought your learning to us.

Mr. Watts, as a student of history, I was interested to learn about John A. Macdonald and the fact that in 1864 he came to the belief that elected senators weren't a good idea and that an appointed chamber would be better.

Coming from Atlantic Canada as I do—Nova Scotia—the Senate has played an important role for Atlantic Canada. As members know, when Confederation happened there were 24 members from Upper Canada, 24 members from Lower Canada, 24 members from the two provinces of maritime Canada, which entered Confederation then. I think when Prince Edward Island joined in 1873—the 1870s—they fit into the 24 from the Maritimes. So that regional component has been important to maritime Canada.

Looking at it in Nova Scotia, it's not quite like Quebec in that you have the distinct 24 regions, but, for example, we've always had an Acadian senator from Nova Scotia. We had African Nova Scotian senators before we had African Nova Scotian members of Parliament. We had some very great champions in the whole area of society in Nova Scotia, cultural society. We had poverty advocate Sister Peggy Butts, appointed by former Prime Minister Chrétien in the 1990s. In my view, they've all brought some great honour to the Senate and to the parliamentary process in Canada.

A number of people have expressed to me a concern about the Senate. Is it worthwhile? I'm going to say that having been here for a few years now, I've seen the work you referred to, from Senator Segal to Senator MacDonald, to the work that Senator Kirby did on a couple of major commissions. I know a lot of good work is done in the Senate. Today I introduced a private member's bill from the Senate into the House, which has passed the Senate and come to the House of Commons. I must tell Canadians that quite a bit of work is done by the Senate.

Even as a Nova Scotian I would say the fact that we have more senators than British Columbia or Alberta doesn't make sense to me. We need to make some changes in the Senate. I think anybody would accept the fact that we need to make changes. Each of the four founding provinces of Canada, if I can use that term, the original four--Quebec, Ontario, Nova Scotia, and New Brunswick—have objected to this legislation, and we've talked a lot about the process here.

My only question to you is simply, would there not be a better way? Would this not have been something better started? You've referred to it as a political bill, and in essence everything that comes to the House of Commons is political, but this certainly seems to be more politically based than policy based. Is there not a better method of consultation, perhaps a first ministers' conference, to start the ball rolling, to decide on what kind of reform should be done with the Senate?

I'll ask anybody who wants to answer that.

[Prof. Ronald Watts]

I'll fire off to start with, but let my colleagues go on.

Just briefly, that's at the heart of my plea about the second point I was making in saying that my concern about this bill is that it deals with one aspect without dealing with the interrelated and equally important aspects that affect the contribution the Senate can make to Parliament and to the federation as a federal institution. Therefore, it seems to me, all fears of the problems of constitutional amendment aside, we do need to look at it fundamentally in terms of the role it plays within Parliament and the federation.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Heard.

[Prof. Andrew Heard]

I think the issue of distribution of seats is very much tied up in the powers of the Senate and how the Senate uses those powers. This is why, in 1982, it was agreed that any changes to the method of appointing senators or the powers of the Senate should be dealt with through the general amending formula. The effect of having elected senators would alter the behaviour of senators in a number of ways. Some we can tell ahead, some we won't, but it's more likely than not that they will feel more emboldened, so the level of interaction and amount of legislation they amend and the position they take on bills that come from the House of Commons will probably be more strident than it is now.

Having more powers and more of an influence in the policy process, provinces across the board will be concerned about their representation and how many hands on that power they have. This is why I feel, from a constitutional point of view, the Supreme Court would be sensitive to this issue, and a bill that might have an effect on the powers of the Senate would be something they would say should be protected, or is protected, under the amending formula.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Simeon.

[Prof. Richard Simeon]

There are just a couple things about that. First of all, as I said at the opening, I think the process being followed here is very much second-best, and I would very much prefer a proper constitutional process.

I don't think it's purely political. I think there is a genuine fear that opening the constitutional Pandora's box would just lead us into endless debate and frustration and so on, and I pay some attention to that. That's why I think we should explore what Parliament can do in this regard.

But the other thing I want to say is, as I said, we don't know exactly what an elected Senate would be like and how it would behave and how partisan it would be, and so on and. I know that many people would say, “Oh, this is turning the Canadian Parliament into something much more like the American Congress, with two powerful legislatures”, and so on.

First of all, as I say, we're not sure about that. Secondly, I'm not sure that would be such a bad thing. We have now the tyranny of party discipline. We have the tyranny of one-party government. We have the tyranny of simple majority rule in the House of Commons. Is that so great? Maybe more and more powerful voices and so on coming at the issues from a somewhat different perspective would not be the end of parliamentary government as we know it but would be something better. I'm not predicting that, but I'm saying we shouldn't just hold onto the existing parliamentary system we have as if it's a perfect working model.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Hill.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Thank you, Madam Chair.

I just want to perhaps pick up on where Mr. Simeon left off a couple of seconds ago.

One of the things that really frustrates me, maybe a bit more because I'm a westerner, has been this whole defence of the status quo in particular by the Liberal Party of Canada over my political lifetime—I've been here almost 15 years now—by both Prime Ministers Chrétien and Martin, where every suggestion that was made to make any change to the status quo situation of the Senate of Canada was met by, “We're not going to do anything piecemeal”. That was their standard response in question period, in interviews, every time they were asked during debate, during election campaigns. In other words, it kind of fits in with what Mr. Watts is suggesting, which is that if we want to bring about meaningful Senate reform, the only way to do it is to open up the Constitution and do it “properly”.

I can tell you that this is very frustrating for vast numbers of Canadians, I believe, who want to see our institutions evolve somewhat. I think what we have to deal with sometimes is what is within the realm of the possible. I think that's what Bill C-20 is dealing with--what is possible.

I don't have in front of me today the full list of how many times over the last 100-plus years successive governments and parliaments and scholars have tried to initiate some substantive constitutional change to the Senate, but I think all of us would agree, as would anybody who's taken even a superficial look at it, that it's been an extraordinarily frustrating exercise to go through, and that's even with the people who are still alive that have gone through that, whether it was the Charlottetown accord that led to the referendum, or before that the Meech Lake accord, which are the two in recent memory.

My understanding--and this is where I would look for some direction from the three gentlemen--is that even in the United States, their elected Senate evolved in a piecemeal fashion, if I can call it that. My understanding, at least, is that the individual states began to elect their senators. Over a period of time, and as Mr. Simeon was trying to indicate, I believe it gradually evolved to become the norm, as opposed to appointment. Eventually, it created enough of a groundswell from the public that it became the accepted standard, and they ended up with a fully elected Senate south of the border.

I would ask the learned gentlemen if they could point to other democracies in which Senate reform came about in a piecemeal manner. It started slowly and grew as public pressure said, well, maybe there is a better way to do this.

[The Chair, Liberal, Albina Guarnieri]

Mr. Watts.

[Prof. Ronald Watts]

I guess that's directed to me, because I was the one who was arguing about the importance of taking other aspects into account.

I worry about taking the contrast between piecemeal, very small, on the one hand, and opening up the whole Constitution on the other. I'm not arguing that we open up the whole Constitution; I'm saying that we open up the issue of the Senate. It's an important part of the Constitution, but I think the danger in looking partially at one aspect is that you get into a situation where that aspect is interacting with the existing powers of the Senate.

If you look at parliamentary systems--leaving aside those like the United States, Mexico, Brazil, and Argentina, which have congressional presidential systems--we have, on paper, the most powerful Senate in the world amongst constitutional federations. We get away with it because, by convention, the Senate is unwilling to defy the House of Commons when the House of Commons clearly has popular support. If you change it so that the Senate is based on an electoral basis, and you don't change its powers, then you can get into a very risky and dangerous situation. That's my concern about looking at it only piecemeal, at one little bit.

You asked about the American process. You're partly right, yes, that's the way it happened, state by state. But in the end, it was a formal constitutional amendment that applied everywhere in the United States. It was a formal constitutional amendment in 1913 that made elections to the Senate by direct election rather than by state legislatures.

When one looks at piecemeal processes, there are some successful ones--and some unsuccessful ones, too, such as Malaysia. Malaysia started with something like three-quarters or two-thirds of its senators indirectly elected by the legislatures and a small portion appointed. By a process of convention, they've come to the situation now where three-quarters of their senators are appointed.

That's not very desirable progress--bit by bit, piecemeal--but that has occurred there. That points to the dangers of a piecemeal approach to reform when it interrelates with other aspects.

I don't want to open up the whole Constitution. I have lots of scars to bear from those efforts over the last 40 years. I recognize fully the frustration and danger of those. But the fear of that is leading us into the danger of going to the other extreme, of trying to do such piecemeal reform that we don't take account of how it interrelates with what is actually already in the Constitution. And that's my concern.