Bill C-20 (39th Parliament, 2nd Session) Committee on June 4th, 2008

[The Chair, Liberal, Albina Guarnieri]

Seeing quorum, I call the meeting to order.

Pursuant to our order of reference of February 13, 2008, we will continue our study of Bill C-20.

Today we are fortunate to welcome a witness who knows Ottawa very well.

Benoît Pelletier was associate dean and professor of the year at the University of Ottawa Law Faculty, where he obtained a master's in law. He then obtained his PhD from the Université de Paris in 1996. Mr. Pelletier is the Minister of Canadian Intergovernmental Affairs for the province of Quebec. He is also responsible for Indian Affairs and appropriately, the reform of democratic institutions.

Thank you for your patience. We had to hold a vote today and that is why we are starting a little bit late. That being said, I would like to invite Minister Pelletier to make his comments.

The floor is yours.

[Benoît Pelletier, Minister, Canadian Intergovernmental Affairs, Government of Québec]

Thank you, Madam Chair.

Ladies and gentlemen, members of the committee, I will first of all introduce you to the person accompanying me, Mr. Jean-Guy Côté, who is the political attaché in my Quebec City office.

I will begin by thanking you for your invitation to take part in the work of your committee in its deliberations on Bill C-20. I will repeat what I said in 2007 when I stood before a senatorial committee—the Government of Quebec does not usually appear before a federal parliamentary forum unless exceptional circumstances warrant it, as is the case today. This is the third time Quebec has come before the Parliament of Canada to express its opinion on the measures put forward by the federal government to reform the Senate.

Quebec presented its viewpoint at a sitting of the Special Senate Committee on Senate Reform in the autumn of 2006, and in a brief submitted in May 2007 to the Standing Senate Committee on Legal and Constitutional Affairs. Quebec's positions are thus well known. We demanded the withdrawal of Bill C-43, today's Bill C-20, by which the federal government would introduce an electoral system applicable to the selection of senators. We also demanded the suspension of proceedings on Bill S-4, now Bill C-19, concerning the tenure of senators. These two measures are presented separately but are indeed components of a single initiative.

For the Government of Quebec, however, transformation of the fundamental features of the Senate is not a matter of ordinary statutes. It is a fully constitutional issue that therefore begs recourse to multilateral procedures of constitutional amendment.

It is perfectly clear to Quebec that the federal government's underlying intention in these bills is to do indirectly what it cannot do directly, namely, to transform the method of selecting senators and, by extension, transform the nature and role of the Senate which, since 1867, has been an appointing chamber of legislative sober second thought.

It seems equally clear to us that the system envisaged in Bill C-20 is electoral in purpose and effect. We have noted that, during the committee's works, it has been pointed out that Bill C-20 had been "carefully drafted" to comply with the Constitution. But the Constitution is more than form. It is more than drafting techniques. It goes to the very heart and nature of things and to the very purpose of rules that govern our society.

Constitutional jurisprudence was quick to emphasize the importance of going beyond form and appearance in assessing the constitutionality of power-sharing measures. The formalist approach was rejected. The courts had the wisdom to recognize that subtle wording can sometimes be tantamount to concealment. They made the pith and substance of the rules of law the centrepiece of constitutional logic.

As I see it, this legal tradition applies just as aptly to the limits of unilateral federal jurisdiction in institutional matters in relation to the multilateral procedures of constitutional amendments. What counts are the purpose, subject and effect of this bill, and not the care taken in drafting it or the ingenuity of the notions involved, such as consultative election as a means of appointment, a notion that appears to have no precedent.

The Government of Quebec maintains that the purpose of Bill C-20 is, beyond a doubt, to transform the method of selecting senators. This is the clear intent of the federal government. The system considered in the bill is not workable or viable unless it is electoral. Otherwise, how does one ask citizens to stand as candidates and campaign throughout the province, with the personal and financial commitments that candidacy entails? How does one justify the involvement of Elections Canada and the use of public resources for a complex voting process that must comply with all the requirements of an electoral system, and ask citizens to exercise their right to vote and to cast a ballot? What is there to prevent candidates from considering themselves and from being considered as elected directly by the population, taking into account the recourse to universal suffrage?

The notion of consultation, therefore, strikes us as artificial. If, after such a process, there is a pool of candidates, as certain federal representatives have put it, that would be a pool of elected persons and this does not change the fundamental impact of the bill on the nature of the Senate. Even if the seats for which these persons have been elected are not all available immediately, these persons would have been chosen by voters through universal suffrage. The idea of a pool does not mitigate the consequences of the institutional change that is sought through this bill.

In my previous interventions, I touched on the link between sections 42 and 43 of the Constitution Act, 1982 and the Supreme Court's 1979 Reference on the Upper House. Further to this opinion that gave rise to the principle of the exclusion of the fundamental features, or essential characteristics, of the Senate from unilateral federal jurisdiction, the framers of the Constitution expressly specified certain exceptions to the federal jurisdiction under today's section 44, including the method of selecting senators, the powers of the Senate, and regional representation, incidentally, three closely interconnected elements in terms of institutional balance and architecture.

With the framework of current debates on the federal bills, some have questioned the contemporary relevance of the Reference on the Upper House. We reiterate that this Supreme Court opinion is just as relevant now as it was then. Constitutional protection of the fundamental features of the Senate is enshrined in the Constitution through the exceptions laid out in section 42 and, in addition to these exceptions, through the required use of the 7/50 general procedure under section 38 of the Constitution Act, 1982.

The federal compromise at the basis of Canada's political system is expressed in the fundamental features of the federal institutions created in 1867. In its original mandate, by virtue of the regional distribution of senatorial seats, the Senate was designed to be a forum for representing the interests of the components of the federation within federal institutions.

For Quebec, those interests take on special meaning in relation to its national identity. Bill C-20 also raises concerns about the francophone presence in the Senate and the role of this chamber regarding the Canadian duality, a point emphasized in the brief presented to this committee by the Fédération des communautés francophones et acadienne du Canada. The Government of Quebec agrees with this position.

The Senate also fulfils the role of providing sober second thought with regard to the legislation submitted by the House of Commons. This role is reflected in the powers of the Senate, which has to approve every piece of federal legislation. As we know, the manner in which the Senate exercises these prerogatives is largely inflected by the fact that it is an appointment chamber.

Bill C-20 would very likely encourage the Senate to make concrete use of the many powers still available to it, even though there are no mechanisms for resolving a potential deadlock between the two chambers. We were taken aback by the argument that Bill C-20's drawbacks are seen by some as a means, in some ways positive, of destabilizing the status quo, of triggering change. We do not think it is possible to embark upon such fundamental constitutional change in this way, without taking into account the complex connections between the various fundamental features of the institutions concerned.

The Senate exists in a complex and coherent constitutional environment that is tied to considerations underlying the federal compact and the balance of intergovernmental relations. The federal government's current bills are not mere experiments or pilot projects. Were they to be implemented, they could lead to sweeping political changes which we cannot safely assume would be easily adjusted or rectified should the need to do so arise, especially if there were to be unexpected consequences.

What we can foresee, however, are possible impacts of an elected Senate on the balance of intergovernmental relations, without improvement in the defence of provincial interests by the Upper Chamber. The new senators would in all likelihood be less effective in representing provincial interests, for they would tend to integrate with the political dynamic proper to the federal scene, in particular, the dynamic of the federal political parties, even if certain variations on the Australian model, the template for the federal government, have been written into to Bill C-20. Here the comparison is with the Australian Senate, an institution in which partisan polarization is particularly prevalent.

What we should be examining is the impact of the electoral system advocated by the federal government on the basic constitutional mission of the Canadian Senate. When the issue is viewed from this angle, it seems obvious that partisanship within the Upper Chamber would intensify.

The provinces have a direct interest in the unilateral changes the federal government proposes to make to the Senate. The argument to the effect that the process of constitutional amendment is too demanding has no place in a federal system in which constitutionalism and the rule of law are recognized as basic principles. It is an untenable argument in a federal system in which the purpose of more complex procedures for constitutional amendment is to ensure that minority interests are taken into account when fundamental constitutional elements are at issue. Consideration of minority interests is of particular importance for the Quebec nation, given its situation within Canada.

The future of the Senate, and changes to its fundamental features, cannot be envisaged outside of the constitutional context to which it belongs, one of constitutional changes in which the provinces are called upon to share the exercise of constituent authority.

It is odd indeed that we have to engage in a procedural debate on a subject as patently constitutional as the nature and role of the Senate and that we are here to demand that the provinces be part of the process.

The provinces must be participants in reforms pertaining to the fundamental features of federal institutions. Quebec is not averse to the idea of modernizing the Senate. It is aware that its federative partners have certain aspirations in this regard. Naturally, it is interested in the question of the role of the Senate within the federal system, and, notably, that of closer relations between the provinces and the Upper House. But a single Parliament cannot monopolize this undertaking of institutional modernization.

In concluding, allow us to reiterate before this committee the message expressed unanimously by the National Assembly of Quebec in its May 16, 2007 resolution. Bill C-20, which the federal government is attempting to present as a minor amendment over which the federal Parliament would have exclusive jurisdiction, in fact masks an in-depth change in the nature and role of the Senate. Under no pretext whatsoever does such a reform lend itself to unilateral action by the federal government. The provinces, and Quebec in particular, cannot be excluded from fundamental debates concerning the evolution of the Canadian federation.

Thank you.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Minister.

We will now begin the question period.

Ms. Folco.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Madam Chair.

Mr. Minister, you had promised us a presentation that would be vigorous, unequivocal, lucid and clear. I must admit that it is all of these things.

Several committee members noted to what extent the process that is being proposed to us would neglect or could forget minorities. I do not mean only the linguistic minorities on a numerical basis—Quebec within Canada—but also the other francophones and the other Canadian minorities, especially people in rural regions who have little chance of being elected in any province that has large urban centres.

As the Minister for Intergovernmental Affairs, you represent the Quebec government before the committee. Could you explain to us what the Quebec government would do if ever Bill C-20 were adopted by the House of Commons and then sent to the Senate? How would the Quebec government react? What kind of role could be played by the Quebec government and the other provincial and territorial governments? I am not asking you to speak on their behalf, but could you give us a picture of what might happen?

[Benoît Pelletier]

Thank you.

First, you are quite right in stressing the Senate's important role regarding the use of the French language in the Canadian Parliament.

Of course, the Senate has a historical role regarding the presentation of Canada's linguistic duality, with the presence of two official languages, French and English, as both languages are used in many federal institutions, especially in the Senate. This is something very important for us, especially as francophones and Acadians all over Canada are afraid that if the Senate were to be reformed in the sense set forth by Bill C-20, it would eventually reduce the number of representatives of these francophones in the Canadian Parliament. This would necessarily be a setback for the use of the French language at the federal level of governance.

Moreover, we must emphasize the importance of the Senate for Quebec and for Quebec's representation within the Canadian Parliament. We all know that the Quebec population is not growing rapidly or vigorously enough, which means that Quebec will see its political weight reduced little by little in the Canadian House of Commons, where proportional representation is applied. This is one more reason to ensure that Quebec be well represented in the Senate, that its interests be well served and that we are dealing with a reliable institution that plays an effective role in the Canadian political system. In fact, the Senate can, to a certain extent, mitigate this decrease of Quebec's political weight in the House of Commons, because of Quebec's large share of the Canadian population as a whole.

For us, these are not trifling matters. We are discussing extremely important subjects. Far be it from us to neglect the Senate as an institution fundamental to the Canadian federal system, and especially, I repeat, the role of French on the one hand, and on the other hand, Quebec's specific role in the Canadian Parliament.

That being said, our most fervent wish is that the Canadian government decide on its own to abandon this project, which has taken shape as Bill C-20. If, for some reason or another, it does not intend to abandon it, we hope that it will call upon Canada's Supreme Court to deal with the entire set of issues regarding the constitutional or unconstitutional nature of this bill. Because we are raising issues with the constitutionality of this bill, because certain experts are raising issues about the constitutionality of this bill, it would be wise, I repeat, for the Canadian government to abandon this project. This would be our preferred option, whereby it would address Canada's Supreme Court to get an opinion on the constitutional or unconstitutional nature of this bill.

In my opinion, it is not sufficient to believe that it is constitutional or to believe that it is unconstitutional. In a reform as far-reaching as this one, it would have to be approved by the courts.

Up to now, Quebec reacted strongly to these federal initiatives by tabling two briefs, and I am appearing for the second time on behalf of the Quebec government. I can tell you that if the Canadian government decided to go ahead, the Quebec government would examine all possible scenarios. However, we have not made any firm decisions at this time.

Simply put, we do not see how the Canadian government could do without putting the constitutionality issue before Canada's Supreme Court, given the major impact of any attempt to launch a reform that would ultimately be declared unconstitutional.

[The Chair, Liberal, Albina Guarnieri]

Thank you. Are you done?

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Yes, that was the gist of my question. I wanted it on the record.

[The Chair, Liberal, Albina Guarnieri]

Mr. Paquette, the floor is yours.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Madam Chair.

Minister, thank you for coming to testify before the committee.

First of all, I understood from your presentation that, in your view the C-20 will modify essential characteristics of the Senate indirectly since the government—as the government leader said in his presentation—cannot make those changes directly. It is therefore tempting to make them indirectly by putting together a bill which in its opinion does not require constitutional debate to be reopened.

Second, you pointed out that this would result in profound changes to the federal compromise, in which the Senate plays the role of counterweight, as you clearly explained in your preceding answer. Thus, in your view, this is clearly a constitutional issue that would require the federal government to enter into negotiations with Quebec and the provinces so that the changes could be made.??

My first question is this: Did the federal government consult the government of Quebec before introducing Bill C-20?

[Benoît Pelletier]

No, it did not. When we saw the first Bill, S-4, which was introduced in the Senate, we arrived at some idea of what might follow. We were not consulted on the content of the second bill introduced, and that bill in fact confirmed what we feared. We feared that Bill S-4, which dealt with the terms of senators, would not be an isolated piece of legislation but would be part of a more comprehensive operation. In fact, that comprehensive operation was confirmed by the introduction of Bill C-20.

[Pierre Paquette, Bloc, Joliette, QC]

In your opinion, not only would Bill C-20 require the government to enter into constitutional negotiations, but also Bill C-19, in fact all the more so. Bill C-19 limits the term of senators to eight years. Both bills would make significant changes to essential characteristics of the Senate.

[Benoît Pelletier]

The two bills are part of the same operation, in our view. If there had only been Bill S-4... At the time, the Government of Quebec had indicated not that it necessarily agreed but that it was at least prepared to tolerate Bill S-4. But when the operation became further developed and took shape in Bill C-43, which then became Bill C-20, we began to envisage its scope. And it is exactly what we feared. Our prognosis was very accurate.

[Pierre Paquette, Bloc, Joliette, QC]

Does the Government of Quebec not find it somewhat paradoxical to see the government introduce Bill C-19, which is on the length of senator's terms, only a few months after the House of Commons recognized Quebec as a nation? We said that Quebec's political weight was threatened by demographic changes. Quebec was not consulted, and moreover Bill C-20 is being put to us as a step towards the democratization of federal institutions. We are told that Quebeckers would be directly consulted for such things as making a selection amongst the group of potential senators, and yet the federal government does not want to consult the government of Quebec on the process to be implemented.

I must tell you—and I am sure you have noticed— that the leader of the government always refuses to talk about the Government of Quebec, but always talks about Quebeckers in his answer on Bill C-20 and the future of Senate reform.

Don't you find it somewhat paradoxical that we hear them talking about democratization when they are refusing to consult Quebec and the provinces on this matter?

[Benoît Pelletier]

I will tell you that we are aware of the will to modernize the Senate that is being manifested across Canada, and to some extent we subscribe to that. The Government of Quebec is not against modernizing the Senate. We say that, if the Senate is to be modernized in a way that affects its fundamental characteristics, that modernization has to be carried out in accordance with established rules. And those rules are constitutional rules. In other words, we are demanding respect for the Constitution of Canada.

Our arguments are based on a premise which we consider to be well-founded and not challengeable. The Senate as such is not a strictly federal institution, or a federal institution in its strictest sense. It is a federal-provincial institution. The Supreme Court said so in 1980. It is an institution that is close to the very core of the federal compromise achieved in 1867, which was federal-provincial in nature, and thus cannot have its essential characteristics modified unilaterally by the Government of Canada. It is as simple as that.

Even if a legal or constitutional expert told me that the 1980 decision no longer applied because the amendment procedures established in 1982 have superseded them, I would still say that the decision contained the following observation: when Canada was created in 1867—I am not talking about 1980 here—the existence of the Senate was one of the conditions Quebec imposed in order to come into the Canadian federal compromise. The same held for the Atlantic provinces. This is a historical fact. Even if it was concluded that the 1980 reference no longer applied, historical reality cannot be reviewed or revised. The Senate is a federal-provincial institution in its essential nature.

That brings us to the second question. Are the bills we have before us substantive enough for us to say that they modify essential characteristics of the Senate? If we conclude that bills C-20 and C-19 do not affect essential characteristics of the Senate, then the federal government's unilateral powers would most likely apply.

If, however, we were to conclude that the bills do indeed modify essential characteristics of the Senate and are substantive, then the rules of procedure for multilateral decisions on modification would perforce have to apply.

This is a bill that will basically change the nature of the Senate gradually, and over time transform it into an elected chamber. Thus, I believe that it is attempting to modify an essential characteristic of the Senate. That is the conclusion I reach. The more we change things, the more multilateral constitutional amendment procedures have to apply.

[Pierre Paquette, Bloc, Joliette, QC]

I must say that some 80% of constitutional experts who appeared before this committee have held the same views as yourself. Only a very small minority of constitutional experts have said that Bill C-20 is not constitutional in scope. I believe that Quebec's position has been very clearly established.

I believe that Quebec has always made one demand—it would like to designate Quebec senators. Does the Government of Quebec still maintain that demand?

[Benoît Pelletier]

Yes. Among all the constitutional models available for Senate reform, we would like one that would eventually transform it into a chamber of the provinces. Originally, the Senate was supposed to be a chamber of provinces, or a regional chamber. It has never really been that, since senators were appointed by the Governor General on recommendations put forward by the Prime Minister of Canada.

We would like the Senate to become a provincial chamber, and the best way of achieving that end would be for senators to be designated by the provinces themselves.

[The Chair, Liberal, Albina Guarnieri]

Thank you. Unfortunately, you have gone past your time.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Madam Chair.

Minister, was the vote taken in May of last year unanimous? Can you say that the two other parties in the Quebec National Assembly hold the same position as the one you have expressed today?

[Benoît Pelletier]

I don't know. I just know that all parties have unanimously demanded that Bill C-20 be withdrawn, and that consideration of Bill C-19 be suspended. The reasons for that demand may be different. I don't want to say that all parties are unanimous in their arguments or their reasons, but I don't want to say the opposite either.

Opposition parties in Quebec's National Assembly have never expressed any reservations about presentations I have made in the past on this issue. No one has ever disagreed, or said that my arguments were incorrect, or that I was taking the wrong approach. That has never happened.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I would like to come back to the answers you gave Ms. Folco. Am I right in believing that the Province of Quebec is ready to go to the Supreme Court of Canada to determine whether this bill is constitutional?

[Benoît Pelletier]

It would be premature to say so with any certainty at this time. That is one option which is being considered, but no decision has yet been made. It would seem much wiser for the Government of Canada itself to ask the Supreme Court of Canada directly whether its bill is constitutional. I would consider that a much wiser avenue to take, and I would consider it even wiser of them to withdraw the bill completely, since in our opinion the bill is unconstitutional.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Has the province of Quebec initiated discussions with other provinces on modernizing the Senate? Have you had any meetings with other provinces on the issue?

[Benoît Pelletier]

Not officially. There have been exchanges of views. The provinces do not all take Quebec's position. For example, Ontario would be in favour of abolishing the Senate, which is not a position we take. On the contrary, as I said at the outset, we consider the Senate as an institution to be important in maintaining balance in the federation. We are very far from demanding that the Senate as such be abolished.

I'm not in a position to say to what extent other provinces share Quebec's point of view. But in my opinion that takes nothing away from our initiative, which is the following—one province, Quebec, is demanding that the constitutionality of this bill be verified. That is the basis of our initiative. We believe that there are unconstitutional aspects to this federal bill. In my opinion, in the context of our federation that is a serious allegation. It goes without saying that it cannot be taken lightly.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you for being here. Those are my questions.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Gourde.