Mr. Speaker, I am picking up where I left off before question period. I got about 10 minutes into a 20-minute talk, and as I have said on more than one occasion in this place, there is nothing like an hour-long break in the middle of a 20-minute speech to allow one to concentrate their thoughts a bit.
Here is what I have done. During question period, I gathered some materials from my office, and also from the library, to allow me to elaborate a bit more on two of the themes I had been addressing before the break. I think I dealt well with the spirit of bicameralism and the importance of it, and I had two remaining issues to deal with. The first was the question of the amending formula that is appropriate for dealing with the Senate and for different aspects of the Senate question. The second topic was dealing with having appropriate documentary evidence available to allow those who are advocating before the Supreme Court on this issue to advocate intelligently, and those on the Supreme Court who are trying to make the decisions, to do so in a fully informed manner.
Let me start with the question about the appropriate amending formula. I want to indicate just how complex this question is. One of the things we have to deal with is the question of property qualifications. A second question we have to deal with is the question of the age to which senators can serve. Other questions deal with their requirement not to be in a state of bankruptcy. The question of what is meant by independence needs to be dealt with. Senators are to be independent. The questions, as members can imagine, go on at some length.
These questions have required us in the past to determine whether or not constitutional amendments were necessary and what kind of constitutional amendment was appropriate. Let me give an example. In 1965, the Constitution of Canada, the British North America Act, as it then was, was amended to terminate the practice of appointing senators for life and replace it with appointment to age 75.
The Constitution, as it now reads in section 29(1) says:
29. (1) Subject to subsection (2), a Senator shall, subject to the provisions of this Act, hold his place in the Senate for life.
That allowed all existing senators at the time to remain in the Senate for life. Subsection (2) reads, “A Senator who is summoned to the Senate after the coming into force of this subsection”, meaning after 1965, “shall, subject to this Act, hold his place in the Senate until he attains the age of seventy-five years”.
That amendment was permissible because of the fact that in 1949, the U.K. Parliament passed an act called the British North America (No. 2) Act, 1949, which is its formal name. That stated that the Parliament of Canada could unilaterally amend certain aspects of the Constitution of Canada, though not all aspects of the Constitution.
That provision, which is no longer part of the Constitution, was the only amending formula in our constitution, in fact between 1949 and 1982. It read as follows:
It shall be lawful for the Queen by and with the Advice and Consent of the Senate and House of Commons Canada...the amendment from time to time of the Constitution of Canada except as regards matters within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House.
I am sure that is completely incomprehensible to just about everybody here. What is going on is a list of things that Parliament cannot unilaterally amend, and that includes most of the important stuff. It says that it is all classes, except all the important things we have listed. However, in the remaining class of things were changes to the structure of the Senate. That was the authority under which the House of Commons and Senate were able to unilaterally amend the Constitution of Canada, in 1965, to change the tenure of senators so that they were appointed only to age 75.
That question could have been appealed to the Supreme Court; someone could have argued that it was inappropriate for the House of Commons and Senate to do that unilaterally. However, it was not appealed to the Supreme Court. We generally agree now that it was a legitimate use of power and constitutional authority to act that way, but it was then removed from the Constitution.
If members thought the wording there was confusing, I will turn now to the procedure for amending the Constitution of Canada, enacted as part of the Constitution Act, 1982. In very fine print in this particular compilation, it goes on from the bottom of one page all through a second page of text, and on through a third page, dealing with the subjects that can be dealt with under various formulae. As I mentioned before, there are five distinct formulae for amending different aspects of the Constitution of Canada, each of which involves a different combination of federal government and provincial legislatures. There is no single formula, and there is much lack of clarity. There is, for example, no consensus as to what formula is the one necessary to allow a province to secede. That was one of the subjects that was raised, but ultimately not answered by the court during the secession reference in the 1990s. The questions posed by the government to the Supreme Court of Canada in the reference, deal extensively with determining which formula applies for which aspect of Senate reform.
We see that the objective is to provide complete clarity where there has been a lack of clarity, in order to permit some avenue to be put forward. There is, of course, the government's legislative agenda, which has consisted of a series of measures for electing senators, looking at changing the length of their terms, and perhaps removing property and other qualifications. With regard to all of these things, we need to determine whether the Parliament of Canada, acting on its own, can do so, or is it restricted and required to go to the 7/50 formula? That would change dramatically what we could potentially do, and would change, depending on the nature of the answer, the kinds of initiatives the government would take.
Similarly, for the proposal to abolish the Senate, proposed by the New Democrats, there are numerous different ways we could do that. We could write the Constitution differently, to have the effect of removing the Senate from the Constitution. The question of whether any of these different ways of working requires unanimity or can be done using the default 7/50 amending formula, where seven provinces with half the population must give consent, would be determined as well. It would answer the question, as a practical matter, as to whether it is possible to make any change whatever, as they propose. There is no question that it would be difficult to use the 7/50 formula to change the Constitution, but it would be very nigh impossible to do so under the unanimity clause, if that is what the court were to determine is required.
These are important questions to resolve. They are all arguments for presenting questions to the Supreme Court, and they are arguments against voting in favour of the New Democratic motion.
I turn again to the matter of having an adequate documentary record available to the Supreme Court as it makes its decision. I, and a number of other people, under the Canadian Constitution Foundation, the CCF, an organization which seeks to expand Canadians' knowledge about their Constitution, have been working to create an online archive of constitutional documents, which will be called “OriginalDocuments.ca”. These will assist the court in all future decisions, but in particular on its decisions relating to the Senate.
The Senate and its predecessor, the legislative council of Canada, is an issue that has been debated, in one form or another, going back as far as the 1840s and 1850s. I have with me a volume that I dug up from the bowels of the Library of Parliament, in which there is a debate from 1856, over a bill to take the legislative council of Canada from being appointed to being elected. I would argue that an understanding of that debate is absolutely necessary in order to move forward, as we might create an elected Senate again.
I look forward to putting these things, and all the reference questions, on the record, and making them available to everybody so we can have a truly informed decision from the Supreme Court later this year.