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

[Benoît Pelletier]

First of all, if there were a change in order to change the Senate into a house of the provinces, let me tell you that it would be a major change. It probably would require discussions with all the provinces--I'm sure of that--and the federal government too.

Is it a reason for not pursuing that objective? No, but at the same time it is very complex. If you do so, you will have to also affect or change the powers of the Senate. As I said earlier, you would require a suspensive veto instead of an absolute veto, which is the current case for the Senate. It's a substantial change, but it is what we would prefer: we would prefer that the Senate would become a house of the provinces and that the representatives of the provinces in the Senate would be designated by the legislative assemblies in the provinces. I'm not saying that these people would be elected provincially themselves, but they would be representatives of the legislative assemblies in the provinces.

Do you know why I would champion that idea of a house of the provinces? It's because I think the provinces should have a better say with regard to the future of Canada. They should have a better say with regard to the evolution of the Canadian federation. In order for them to have a better say, I think one of the options is to change the Senate into a house of the provinces, but this is a major change. It would be a major change.

[Rob Moore, Conservative, Fundy Royal, NB]

You made a comment, and I appreciated it, not that it applies directly to this situation. It was that just because something is difficult to do is not necessarily a reason not to try to do it--to try to do something positive to change something.

You've mentioned and given your opinion on the constitutional aspects of this bill, particularly the constitutionality of the bill. We've had here at the committee Professor Peter Hogg, who, as you know, is a leading constitutional expert. He says that the bill complies fully with the Constitution and that in his opinion the bill is in fact constitutional. In light of his opinion that the bill is constitutional and in light of the....

There are varied opinions. You mentioned that some political parties and even some provinces are of the opinion that the Senate should be completely abolished; that's out there. Some people, perhaps with vested interests, believe that for one reason or another the Senate should stay exactly as it is; there is that element out there.

But most Canadians and most people from coast to coast, I would suggest, are not 100% satisfied with the status quo. They feel there should be more input, more democratic input. I also take into account your comment that just because something is difficult is not a reason not to try to proceed with change. What is your reaction, then, to this goal that we proceed with something that gives more democratic input and democratic legitimacy to the Senate, while also weighing the finding from a leading constitutional expert that what we're proposing is in fact fully constitutional?

[Benoît Pelletier]

I know that even among the experts there are many points of view. So I ask you, isn't that a reason for clarifying everything and making sure that we do not make any mistakes? That's the bottom line.

As I said, some experts do pretend that the reference of 1980 of the Supreme Court of Canada on the upper house does not apply any more. They pretend that it was replaced by section 42 or section 44 of the Constitution Act, 1982. They look at the bill and say it does not fit within section 42, so it must fit within section 44. But what about section 38, the residual amendment procedure? Why wouldn't that residual amendment procedure apply when a bill affects a fundamental feature of the Senate that is not mentioned in section 42? If it's a fundamental feature and it's not mentioned in section 42, it should not be within section 44; it should be somewhere else. If it's not in section 44 and it's not in section 42, it must be in section 38.

I did not see a commentary that was made in favour of Bill C-20 that could not, on some aspects at least, be put into question. For that reason, I invite you to be extremely cautious, extremely prudent with that matter. Even if the objectives that you, being the federal government, are pursuing might be extremely legitimate, there is a constitutional process in Canada that must be respected. At some point, what you see here is a province that asks for a verification of respect of the Constitution to which it adhered in 1867.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Minister.

We'll go back to Mr. Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

You reminded us earlier of a demand that Quebec has been making for quite some time now, which is that the provinces be empowered to appoint their senators themselves, to ensure that the Senate is a place that represents the provinces.

We questioned the Prime Minister about this and he responded that he was not in favour of replacing federal patronage with provincial patronage.

How do you react to that statement, which borders on populism? In my opinion, it demonstrates the hard line the Prime Minister is taking with regard to the way he sees Senate reform.

[Benoît Pelletier]

In my opinion, Canada could well do with a provincial house that is completely viable and useful, as is the case in other federations throughout the world. In some respects—and I want to be clear that this is in some respects and not entirely—we could use the German model as an example, as it has proven its merits over the years. However, we would need to make various changes to that model, so as to avoid various perverse effects that this model created in Germany.

Furthermore, I want to repeat the importance for Quebec of the Senate. I am not saying this lightly. Quebec feels that the Senate plays an important role with regard to ensuring the balance within the federation.

[Pierre Paquette, Bloc, Joliette, QC]

If there is to be any Senate reform, the provinces and Quebec must be consulted. Regardless of the changes made, I am convinced that for Quebec, it is an issue of some kind of counterbalance to its presence in the House of Commons.

Earlier on, I read what Mr. Harper was saying about the idea of turning the Senate into a House of the provinces. We clearly sense that the Harper government—and this was also the case with Mr. Van Loan when he came to testify—considers that Bills C-19 and C-20 are a take-it-or-leave-it proposition, in the sense that if they are not passed, they will work to abolish the Senate.

Do you believe that that kind of statement, which in my opinion is almost blackmail, holds water? Should we really be concerned that the federal government, the Conservative Party, could decide unilaterally to abolish the Senate? Is this a credible threat? This would forcibly result in a new round of constitutional negotiations.

[Benoît Pelletier]

I think even more experts will tell you that this could only be done under a multilateral constitutional change process. The Constitution already sets out, in section 42, that you cannot touch the powers of the Senate without using the 7/50 formula. If you eliminate all powers, a fortiori, this procedure applies. There are even some experts who claim that in such a case, one would have to evoke section 41, because you would be changing the process for constitutional amendment, which gives the Senate certain powers, a suspensive veto as far as certain constitutional amendments are concerned. Therefore, in all honesty, it seems absolutely unthinkable to me that the Senate could be unilaterally abolished.

[Pierre Paquette, Bloc, Joliette, QC]

I can assure you that the Bloc Québécois feels that Bills C-19 and C-20 are unacceptable, and that it would be the torch bearer of the consensus of the National Assembly.

I would like to ask you a question that is somewhat peripheral, but that nevertheless is linked to the subject. Mr. Harper and the Conservative government are spending a great deal of energy to reform the Senate through Bills C-19 and C-20. With this vision, they are trying to make any change at all in order to relaunch the debate on Senate reform.

Would it be better for the Conservative government to deploy as much if not more energy in an effort to settle the problem of the federal government's spending powers in areas of Quebec and the other provinces' jurisdictions? As you know, the Minister of Finance and the Prime Minister have announced a bill several times that has yet to be tabled. For the moment, there is some control and they do not have to answer to anyone.

In the short term, should the priority not be to work on attainable goals, such as the elimination of the federal government's powers of expenditure in areas of provincial and Quebec jurisdiction?

[Benoît Pelletier]

The Government of Quebec's priority was not Senate reform. It became an issue for us under the circumstances, of course. We have already stated that our priority was to limit the federal spending power in the jurisdictions of Quebec and the provinces. That is our government's stated position.

The Government of Canada has a comprehensive perspective. It sees the demands of the western provinces and must also deal with the interests of several partners, which is perfectly legitimate. It felt that it should make Senate reform an issue. I do not challenge that choice in and of itself, and I do not even question the motivations behind it. However, this must be done within the established rules, which are of a constitutional nature.

Within that context, we have our own priorities, and the Government of Canada has a pan-Canadian perspective of course. I am well aware of the fact that several provinces are asking for a modernization of the Senate. We are not taking this position to annoy them, but to remind them of the importance of respecting the federal compromise of 1867, of respecting the current Constitution and of respecting the role of the provinces within the Canadian federal system.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Preston, were you on the list?

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I'll give it a shot. I may not have the full time.

I've been spending time at this committee listening to many experts. I thank you for coming today and for sharing the views of your province, Minister. I think it's exciting to hear them and to gather all the information we can gather on this issue.

Many of the people who have come here--and you've joined, somewhat, the chorus--tell us how hard it would be to do what we're attempting to do here, and that's make the Senate something different from what it is today. Is it worth doing? I keep hearing how hard it's going to be. I'm one that likes to grab on to a challenge and say yes, let's do it. If it's worth doing, it's probably because it is hard to do. What's your opinion on that? You keep saying that it's easy to throw the roadblocks in the way of Senate reform or have the change in the Senate we'd like to see. Is it worth doing?

[Benoît Pelletier]

I think it is worth trying to improve the Canadian federation. It could be done through different means. Some of these means are constitutional per se, others are not. It all depends.

In the case of our government, in 2003, when we formed the government in Quebec, we decided to work at building a stronger Quebec within a stronger Canada through non-constitutional means. I think we have succeeded pretty well in doing so. Many other things still have to be done in that regard, but we are proud of our success.

At the same time, I should recall, because I said some things can be done without a constitutional amendment and some others cannot be done without such an amendment, that it happens that when the Constitution must apply, the Constitution must apply. The Constitution is like a contract among partners. We feel that at some point, for a fundamental question, that contract should be respected.

One of the values of the current situation, as Mr. Paquette has suggested, is that it certainly revitalizes the debate concerning an institution that maybe we did not talk enough about during the last years and that might have deserved more attention on our part. That debate is very sane, and we are part of that debate. This is why I'm here today. It's worth continuing, trying to improve the federation, respecting the Constitution, respecting the provinces, and making sure that finally we get institutions in which all the provinces and all Canadians recognize themselves. They see themselves. They adhere to it. What concerns us is the adhesion of Quebec to the reform of Canadian federalism seems to be extremely important.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

You mentioned there, and you said earlier, that you understand Canadians want greater democratization, that it's something Canadians may be reaching for. I agree with something else you said, that perhaps we've left this topic for too long, and it wasn't something that was talked about. We've gone since 1867 to where we are today, and I'm not sure many Canadians say the Senate they currently have matches their views of what democracy is, or where Canada should be. In my mind, we have to get there. I guess the question is, do we take one large jump at it or do we take small bites? They say the best way to eat an elephant is one bite at a time. Is Bill C-20 one of the bites along the way?

[Benoît Pelletier]

The end result is that you have eaten an elephant. That's the end result.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I may have been accused of doing that before.

[Benoît Pelletier]

It is very wise then, very subtle. But is it constitutional? I don't think so. Why would someone be allowed to do indirectly what that person cannot do directly?

In our case, even if it is very subtle, it is important enough for getting a reaction, for bringing us to reacting to the situation and saying that it goes too far. This is something that in our view needs a formal constitutional amendment. That's the point.

At the same time, I know what the aspirations of many people are. I know that. In our society, the Constitution is above everything, and that Constitution should be respected. There are things that we can do together, without the need for a constitutional amendment. We are ready to do so. We are ready to participate in a Canadian project. But when we feel that the Constitution applies, we need to show respect to that Constitution.

If we accept that piecemeal approach, that one-bite-at-a-time approach, what will be next? Will it be the distribution of powers between the federal government and the provinces? Would it be the Supreme Court of Canada? What would be next? At some point there are different things that we cannot accept, because the consequence in the long term would be too damaging to the Canadian federation.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Minister.

Madame Folco, you have the last round of questions.

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

Thank you, Madam Chair.

Mr. Minister, Bill C-20, as it is presented, provides for electing senators on a provincial basis, and, it seems to me, also under the aegis and the control of the federal government, because it says, among other things, that the elections to the second chamber—let us call it the Senate—could take place at the same time as the elections to the House of Commons, in each province and according to standards set by the federal government. This is one of the possibilities that the bill provides. The federal government determines the number of electors and the federal government, or at least the Prime Minister, would also choose, from among the elected senators, the persons whose names would then be proposed to the Governor General.

Thus, I think that this provides an interesting combination of procedures. However, I am digressing. Given the fact that the federal level seems to be in control of electing senators to the chamber of the provinces, would you envisage giving a much bigger role to the provinces in electing candidates to the Senate in each province, as Alberta did, for example, during the two past elections it held for senators?

[Benoît Pelletier]

This is not a scenario that we are envisaging, because we do not want to authorize a process which, in our opinion, would eventually transform the Senate's mandate by progressively transforming the institution into an elected chamber, without applying any formal constitutional amendment procedures. Therefore, this is not a scenario that we are considering.

If we want to find out what the true pith and substance of Bill C-20 is and what its basic principles are, we are faced with heaps of measures, including the participation of the Chief Electoral Officer, along with rules for counting ballots, electoral expenditures etc. We are obviously dealing with an electoral bill.

Even if we are told that this is meant for consulting the people, it does not, in my opinion, change the basic nature of the bill in any way. Pursuant to Bill C-20, we could tell someone to stand for election in a province, to tour the province while defending his points of view and opinions, and to try to catch the interest of the population—

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

Oh no, not a platform, Mr. Minister.

[Benoît Pelletier]

I did not use that term.

So, we would tell a person to try to attract favourable public attention, to incur electoral expenditures, to participate in elections, and ultimately, Canada's Prime Minister could say that he prefers some other person who has not been through the electoral test. We are also told that the Prime Minister will keep his discretionary power, that he will always be the one to make recommendations to the governor in council.

Frankly, when the question is put so bluntly, I think that the conclusion is easy to come to.

[The Chair, Liberal, Albina Guarnieri]

Have you finished, Ms. Folco? Thank you.

I want to thank the minister for sharing his knowledge with all Canadians and for having clarified to us his views regarding Senate reform.

I'm sure, Minister, you felt that you were at a discovery meeting of some pending legal battle, given the questions being posed to you today. Thank you for your patience today.

We have a point of order by Mr. Reid.

I'm going to suspend the meeting for a few minutes so we can bid farewell to our guest. We will come back in two minutes.

Thank you.

[The Chair, Liberal, Albina Guarnieri]

We'll resume the meeting.

Mr. Reid.