Evidence of meeting #7 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.
4:55 p.m.
Liberal
4:55 p.m.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
I would just add a brief comment.
I understand and share the frustration you express. Coming from British Columbia, I hear a lot of concern about Senate reform there. One thing I would caution, though, is that there are certain things one can achieve through political practice and convention and certain things one can achieve through ordinary legislation. What one can do through legislation has its limits. What one can do through convention has its limits. Certain things can only be done through constitutional amendment.
An informal change could quite easily be undertaken by a government. They could say, “We're going to act on a list of nominees from provincial governments. We're going to break the patronage mill that we've had up until now.” There's nothing to stop the Prime Minister from saying, “I'm going to appoint after consultations with the premiers from now on.” That would be an important change to the Senate and an important change to federal-provincial relations. But if one were to bring in legislation to say that, one might run into difficulties.
This is one of the ironies of constitutional innovation. There are some things you can do informally that you cannot do once you try to write them down in law. One of the concerns I have is that the particular process that is chosen now may have problems from a legal point of view, but that's not to say there aren't other things you might do legally, as opposed to this particular process.
5 p.m.
Liberal
5 p.m.
Prof. Richard Simeon
Yes, the discussion is going in an interesting way. We're talking about two kinds of fear here.
First, we have the fear that's just been expressed of the potential difficulties of two houses with formally equal powers, with both of them being elected rather than only one, and the possibilities of danger, risk, and so forth. That's certainly true. I think it should be noted, however, that the transition to a fully elected Senate as well as a fully elected House would take quite a while. We'd have a long time to see how it would develop.
On the one hand, there's the fear of passing the bill. On the other, there's the fear of opening a Pandora's box of constitutional amendment and the worry that if we do it we'll get into another endless debate. There's the fear that we couldn't keep it focused on the Senate. As in Charlottetown, the agenda would get bigger and bigger.
Given these two sets of fears and the desire not to just be bogged down in the status quo, it seems to me that it would be a good thing for all of our political institutions to explore the range of things they can constitutionally do. This is the reason I wanted to propose that we let Parliament use its imagination, test the limits of its constitutional powers, and then consult the court to see if it is still within bounds. If so, great. If not, the court will tell Parliament and Parliament will have to draw in its horns.
I would say the same thing about the provinces. I know the provinces don't have any rights at all in the appointment of senators, though I've often thought they should. But there's absolutely nothing to prevent provinces from having elections in order to generate a name they want to put in front of the federal government and the Prime Minister. This seems perfectly fine to me. It's testing the limits. It may or may not work, but it's an example at the provincial level of trying to open up a process that we've all agreed is not very effective as it stands.
5 p.m.
Bloc
Yvon Lévesque Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you, Madam Chair.
Thank you, gentlemen, for having given us your expertise and for having travelled here to do so. Thank you also, Mr. Simeon, for making yourself available.
I have several questions, all of equal weight. Parliament should sit in your class for a week to get a clear idea of the factors involved in passing the bill as it is presented.
Among other things, the House of Commons is being compared to the upper house, or the Senate. The Senate is called the upper house precisely because, I believe, in the spirit of the conventions and the law...
Might the Supreme Court be tempted to consider the spirit of the conventions if it were to decide on the legitimacy of a bill like this?
If we compare Bill C-20 to Bill C-19, which has also been brought forward, do we not automatically have to open the Constitution? But there is one major change. To my knowledge, no negotiations have taken place with the provinces. We are moving towards an upper house with powers not greater than but equal to the powers of the House of Commons. At the same time, we are exposing senators to the pressures of civil society, the same pressures that members of Parliament are under today. In that context, the quality of decision-making in the Senate... Doubts start to creep in. Mr. Simeon and Mr. Heard spoke about that too.
I would like to hear your comments.
5:05 p.m.
Associate Professor, Department of Political Science, Simon Fraser University, As an Individual
I believe the Supreme Court would pay close attention to the conventions and how they affect this bill.
This relates to some of the questions from Mr. Reid and Mr. Comartin earlier. I think one of the issues is whether the court would simply deal with the black letter of the law, or would it expand it to public expectations and constitutional conventions? My belief is that the Supreme Court would treat this as one of those areas where it cannot simply take the black letter of the law; it must look at the context and the effects of it. It would therefore look at the public expectations and whatever conventions would or would not operate around that area of law.
I mentioned the Quebec secession reference earlier, where in terms of the black letter of the law, the Supreme Court could have, and perhaps should have, said Quebec does not have a right to separate in international and domestic law, period. But they went on to say something else. I think the same thing would apply here. There are some areas of law where you cannot simply stop with the black letter of the law and the Supreme Court would talk about the expectations of the public and what conventions would relate.
In some respects, the court in the Quebec secession reference created a brand-new convention. Everyone now believes the federal government has an obligation to negotiate separation if a clear majority votes in favour of it. I would say that's now one of our conventions of the Constitution. We don't need a referendum to tell us that is in fact a constitutional obligation on the government; this was something authored by the Supreme Court of Canada, quite curiously.
My belief is that the Supreme Court would take this area of law with respect to the Senate, look at it in the same kind of political context, and make some very strong statements about the obligations of the federal government and their relations to provincial governments in dealing with the central institution of this federation.
5:05 p.m.
Prof. Richard Simeon
I think one thing we're perhaps avoiding a bit--and it might be an issue if the Supreme Court were to really explore this in the kind of detail that Professor Heard just mentioned--is the wrong we're trying to right here. This is a completely undemocratic Senate. It is appointed by prime ministerial power, which is essentially unlimited. As Ron Watts pointed out, it is utterly unable to perform the balancing and regional representation that senates are designed in most federations to perform and so on. We have a failed institution here.
If one had to say what's wrong with Canadian federalism, we would say it was this aspect of it, this inability of the central government fully to represent all Canadians and fully to be an arena in which the interests of regions and the national majority would be negotiated and accommodated. So that would be part of the discussion as well.
The Supreme Court has said, as it did in the secession reference, that federalism is the fundamental Canadian constitutional value. We have an anti-federal Senate. It said that democracy is the fundamental Canadian value. We have an undemocratic Senate. This is why I want to explore all the different possibilities. We want to move off an institution that is a blot on the Canadian political system at the moment.
5:05 p.m.
Liberal
5:10 p.m.
Conservative
Joe Preston Conservative Elgin—Middlesex—London, ON
Thank you very much.
I thank you all for being here. I'm learning as I go, so this is great. It's not my regular committee either, but I'm really charged with what I'm hearing.
I want to start with some of the things that have already been said. I continue to hear that it's an admirable goal, that what we're trying to do is at least a step forward.
But Mr. Simeon, I think you said the process is second best. However, then you said let's explore what the Parliament of Canada can do. I'll ask you the question then. If this is second best but you want us to explore what the Parliament can do, what are you suggesting?
5:10 p.m.
Prof. Richard Simeon
Should I try to answer that, Madam Chair?
5:10 p.m.
Prof. Richard Simeon
Well, I think in my initial presentation I did make a suggestion. The suggestion would be to try to fix some of the weaknesses in the current bill. Most of the weaknesses have to do with the fact that it's not clear whether this is or is not finally an elected Senate, because the Prime Minister retains the discretion--we don't know how he'll use it--to decide whether or not there will be a Senate election, whether to accept the results, whether it will be in some provinces but not in others. That seems to me to be far too much uncertainty in the bill.
The other big recommendation I made was that the election not be held coincident with a federal election or a provincial election, but on a separate day.
What I would like the committee to do is strengthen the bill, tighten it, clarify it, so it becomes more clearly an elected-Senate bill.
But then, we understand that gets close, and maybe over the line, to doing something that Parliament does not have the constitutional authority to do. There is not a consensus on that question. Lawyers like Peter Hogg and Pat Monahan and Fabien Gélinas have said that this bill is okay. But even they worry that once you add Bill C-19 to it and tighten it up, then it might cross the line.
What I would like to see the committee do is craft the best bill they can, then submit it to a Supreme Court reference. That will test the waters and test whether and how the federal Parliament on its own can try to improve the Senate. If the Supreme Court says, “No, you've crossed the line”, then we have to go the constitutional route.
5:10 p.m.
Conservative
Joe Preston Conservative Elgin—Middlesex—London, ON
Well, Mr. Simeon, I agree with your first part, that this committee should try to craft the best piece of legislation it can. But we have said here also today that public consultation, or at least public opinion, needs to be gathered on the subject, whether it's a full constitutional review or.... So I disagree with getting as far as we can or the best that we can and then narrowing the consultation to just the Supreme Court. I'm not certain that's public consultation. I'm not certain that's bringing the public into it. I think that's narrowing it, after the best work we could possibly do.
I'd like some comment on that.
It doesn't have to be just you, Mr. Simeon, but please go ahead.
5:10 p.m.
Liberal
The Chair Liberal Albina Guarnieri
Is anybody up to the challenge?
Mr. Simeon, would you like to accept the challenge?
5:10 p.m.
Prof. Richard Simeon
I just have to say I accept the power of that comment. I guess the question is whether one tries to move ahead with what's on the table right now or steps way back, because I do believe, yes, that in the whole question of improving democracy in Canada we need much more public deliberation. And even though their proposals did not get accepted, I thought the citizens' assemblies in B.C. and Alberta were a model that actually might work in an area just like this.
So I accept the contradiction in my own thinking here.
5:10 p.m.
Prof. Ronald Watts
This is why I argued earlier on that Senate reform is urgent and important and that it's why we may have to go through a constitutional amendment procedure for the Senate, because that procedure involves wide consultation. That's the whole point of the requirements in the constitutional amendment process, that when you're dealing with something that is a fundamental value in our political system, it requires that breadth of consultation and involvement.
I'm not a defender of the status quo, for the reasons that Richard has already stated. As a comparative scholar of federal systems, I've come to the conclusion that there are many things in which there are lessons we can teach other federations. But one area where in comparative terms we are weakest is in the form of our federal second chamber. Not that it hasn't done some good things, but in terms of its function in creating a cohesive federal system, it is not performing that function. And that's not the fault of the individual senators; it's the form of the structure that was set up. So that's what we have to deal with.
That's why I think this is fundamental, important, and urgent.
5:15 p.m.
Liberal
The Chair Liberal Albina Guarnieri
Mr. Preston, I see you're eager. I'll allow one very short question.
5:15 p.m.
Conservative
Joe Preston Conservative Elgin—Middlesex—London, ON
I guess I wanted to follow up on what Mr. Watts just said. We keep talking about whether we can open the Constitution on just Senate reform. Do the three learned gentlemen believe we can do that?
I, for one, don't believe it can be opened on just one piece of Senate reform, for example. We keep hearing the question, if we open the box, what else jumps out? I'll ask you.
5:15 p.m.
Prof. Ronald Watts
I can reply to that one. If you look at the experience of most other federations, you will find they have many discrete constitutional amendments. We've even had some on things like education in Newfoundland—
5:15 p.m.
Liberal
The Chair Liberal Albina Guarnieri
Excuse me.
Hearing the bells, I'm informed that I have to suspend immediately, unless there's unanimous consent to continue.
Actually, since we're just next door, we could continue for another five minutes or so.
5:15 p.m.
Conservative
Jay Hill Conservative Prince George—Peace River, BC
I don't think the vote is going to happen until one of us is over there anyway.