Mr. Speaker, I am dealing with an opposed item, the opposed item being the estimates necessary to carry on the business of the Senate. It is the funding for the Senate.
This is an item the New Democratic Party opposes every year. Every year the NDP causes us to have to deal with the issue of whether or not the other place ought to receive any funding. The NDP's argument, as one can see from the debates in previous years on this matter, is to argue that the Senate has no legitimacy. That argument will be summed up with more finesse by one of my hon. colleagues on the New Democratic benches in time, but it goes something like this: the Senate has no place, as an appointed upper House, in a modern federation like Canada. We would be better off with a unicameral Parliament.
I expect NDP members would point to a number of other jurisdictions that have unicameral Parliaments, such as New Zealand or the various provinces, some of which did in fact have legislative councils, upper Houses, of their own in the 19th century. These were abolished in the course of the 19th century in Prince Edward Island, Nova Scotia, New Brunswick, and Manitoba, and then in the course of the 20th century in Quebec. No other province has one.
That would be the essential argument they are making. The New Democrats would also argue that no change to the way the Senate is structured can make this body better than the situation we would have if we had a unicameral Parliament. That is the essential argument. It is a defensible argument, although I do not share in it myself.
The trouble with this argument today is that we are facing a somewhat different set of ground rules than we were in the past. This argument was presented in the past with the symbolism of saying that the Senate is a morally bankrupt place and therefore we ought not to fund it. We all understand that in the end the funding will go through and the estimates will be approved, but we are making a statement.
That is a statement that no longer has very much moral resonance, and I would urge the New Democrats to perhaps refrain from opposing this item in future years. I will present my argument as to why this should be the case.
What is different from previous years is that this year we have an answer to a series of questions that were posed to the Supreme Court last year regarding different ways of reforming the Senate.
Building on the fact that there was a consensus among Canadians that the Senate ought not to be an appointed body into the future, the government put forward a series of six specific questions to the Supreme Court of Canada, asking about different options for changing the Constitution in order to change the structure of the Senate.
These included a question regarding limits of tenure on senators: instead of being appointed to age 75, could senators be appointed for some limited term of perhaps eight, nine, or ten years? Six years is actually the standard we see in both the United States and Australia, and I would argue it is essentially the gold standard worldwide, but it had not been considered in Canada. We were looking at a longer term.
Limitations on the terms of senators was a question that was asked in several different ways. What amending formula would apply to this kind of limit or that kind of limit on senators? What if it only applied to senators appointed in the future, or only to senators who had been appointed after the current government came to power or who had signed declarations indicating a willingness to step down?
Second, the Supreme Court was asked about consultative elections. What if the federal government were to sponsor consultative elections, meaning a kind of plebiscite among the people of the province as to who ought to be appointed on their behalf to represent them in the Senate?
Third, what about a federally sponsored framework under which provincial governments could enact their own legislation, which would be used for these consultative votes on who should be appointed to the Senate?
Then there was a question that related to the repeal of property qualifications to be appointed to the Senate.
Finally, the Supreme Court was asked about just abolishing the Senate. Could it be done under federal powers?
The Supreme Court responded to all these questions.
To explain what happens next, it is important to remind people that there is more than one amending formula for the Constitution of Canada. In this respect, we are not like the other great federations of the world.
The amendment formula for the U.S.A. is that if three-quarters of Congress and two-thirds of the state legislatures support a resolution to amend the Constitution, then that amendment will take place. The Australian system is that if there is a majority in a referendum in a majority of the states, then there can be a change to the Constitution.
The Swiss also have a consistent referendum system. A majority of cantons must approve it, as well as a national majority. Similarly, Germany is also a federation, as is Austria. They too have systems that have one amending formula.
However, in Canada there are five amending formulae. We have a system under which the federal government can unilaterally amend the Constitution, section 43 of the Constitution. Section 44 says that an amendment can apply to a single province. I am not working this through in the order in which they are stated. Section 38, the so-called general amending formula, says that certain aspects of the Constitution can be amended with the support of seven provinces having 50% of the population of Canada.
Another formula, the unanimity formula laid out in section 41 of the Constitution, says that for certain kinds of amendments, every province must give its consent. When I say “every province”, what I mean is every provincial legislature, so in practice a section 41 amendment has to be supported by all 10 provincial legislatures as well as the Parliament of Canada. For the 7/50 formula, seven provinces with 50% of the population must consent.
It is not always clear which amending formula applies to which aspect of the Constitution. There are a number of areas that are unclear, none more so than the Senate. What the Supreme Court did in its ruling earlier this spring was lay out which of the amending formulas applied.
The Supreme Court's opinion, right or wrong, is binding upon us. It turned out that the Supreme Court said that federally sponsored elections or federally administered elections, which is to say those conducted under provincial legislation that fits into the federal framework or those directly administered by the federal government, cannot be permitted. They are unconstitutional. The Senate cannot be democratized unless there is first a constitutional amendment that is approved by seven provinces and half the population of Canada.
With regard to limitations on the terms of senators, it said that a limitation cannot be placed on a senator and that if a senator has signed a declaration in advance indicating a willingness to step down, that declaration is of no binding force or effect unless there is first an amendment that is approved by seven provinces with half of Canada's population.
With regard to the question of repeal of property qualifications, right now there is a requirement that a person must own $4,000 of real estate, a more significant amount in 1867 than it is today, in the province he or she is representing, or a leasehold to that value. The Supreme Court said that requirement can be abolished, but unilaterally. The federal government can actually pass an amendment in Parliament that will strike down that provision, but not with regard to Quebec.
In Quebec, there is a provision that one must own $4,000 of real estate in the electoral district that a person is representing in the Senate. One of the quirks of the way the Senate is set up is that senators from Quebec represent districts that were outlined in the census of 1861 for the legislative assembly of the United Province of Canada, and those 24 districts were frozen in place at that time and continue to be represented. There are all kinds of oddities involved in this issue. Quebec was geographically smaller than it is today, so northern Quebec is not represented by anybody. The northern two-thirds of Quebec has no representation at all.
The districts bear no resemblance to population patterns in Quebec today. Rural districts have almost no population, vis-à-vis the Island of Montreal, which has dozens of federal ridings but, if I am not mistaken, just two districts. That is an accurate reflection of the population of Quebec in mid-19th century, but not today.
If we wanted to get rid of that and say that people just have to be a resident of Quebec and that they do not have to own real estate in that particular district, we could not initiate that amendment. We could initiate it, but we could not follow through. The Quebec National Assembly must also approve it. We could not do something as simple as that unilaterally.
Finally, the Supreme Court spoke on the issue of the abolition of the Senate. This is the proposal favoured by the New Democrats. What the Supreme Court said was that in order to abolish the Senate, an amendment approved by all ten provincial legislatures and both Houses in the Parliament of Canada is required.
What we are talking about here is zero funding, but taking away the funding for this institution demonstrates nothing anymore. The Senate is unreformed because the Supreme Court has said that we cannot reform it. We really cannot abolish the Senate unless we get the consent of every single provincial legislature.
However, it is more complicated than that. In 1996, in the wake of the Quebec independence referendum that got a “yes” vote 49.3%, if memory serves, the Chrétien government introduced a piece of legislation known colloquially as the regional veto act. I am going to take a moment to read the relevant parts of this very small act. It is “An Act respecting constitutional amendments”, and it was assented to on February 2, 1996. It says:
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:... (1) No Minister of the Crown shall propose a motion for a resolution to authorize an amendment to the Constitution of Canada, other than an amendment in respect of which the legislative assembly of a province may exercise a veto under section 41 or 43 of the Constitution Act, 1982 or may express its dissent...unless the amendment has first been consented to by a majority of the provinces that includes (a) Ontario; (b) Quebec; (c) British Columbia; (d) two or more of the Atlantic provinces...[representing] fifty per cent of the population [of that region] (e) two or more of the Prairie provinces that have, according to the then latest general census, combined populations of at least fifty per cent of the population [in the Prairie region]
There we are. We have to have a majority in all of the regions before we can even introduce an amendment. This is significant because it means that we cannot initiate a proposal. A minister of the crown cannot stand up and propose to abolish the Senate or amend the Senate by making it more democratic, limiting terms, or getting rid of property qualifications unless the measure has first been approved by the government of a province. We are no longer able to initiate constitutional amendments under this legislation.
We could try repealing this legislation and then proposing an amendment to the Constitution regarding the Senate. However, right now that ability does not exist. While I understand the sincerity of the New Democratic Party members in their desire to remove the Senate, an institution that they regard as atavistic, the fact is that we are not in a position to make that change.
Ironically, they are in a position to make that change. No minister of the crown may make this change, but the member who proposed the opposition motion, for example, could, if he wished, propose a resolution to this effect. We could then see the start of some process, I guess.
If they are sincere about some kind of change to the Constitution of Canada, it is time for them to start demonstrating it by putting something forward. Alternatively, they have friends in provincial legislatures. If they feel it is something that should be started at a provincial legislature and then carried on through a different legislature to adopt the proposal to change or amend the Constitution regarding the Senate, they could do that.
The point is that the ball is in the NDP's court. It is not enough any more to repeat what I think has unfortunately become a mantra—the mantra being that the Senate should be abolished—and now when anybody suggests anything about legitimizing that body any other way, they kind of stick their fingers in their ears, start saying, “I can't hear you; I can't hear you”, and discussion ends. New Democrats have picked as their alternative, as the one they are so closely aligned with, the single method that is the hardest to achieve. The fact is that all of these methods of changing and democratizing the Senate, making it a more modern institution, have all been blocked by the Supreme Court.
Was the court right in what it did? Was it wrong in what it did? I am not one of those legal positivists who believes that every time the court rules, the court is automatically right because the judges are my betters and know better than I do in all respects. The fact is that they have the final say. Therefore, their word is law and we have to accommodate ourselves to that reality.
The New Democrats have to accommodate themselves to that reality too, and it would seem most inappropriate, indeed, to withhold funding from an institution that we are not constitutionally entitled to change, on the basis that we think that institution is out of sync with modernity. It would be far more appropriate to try to find a way of helping to modernize that institution, and I look forward to any comments they may have as to how they would go about doing that.