Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
(Formerly Privileges, Standing Rules and Orders)
Issue 12 - Evidence
OTTAWA, Tuesday, November 20, 2001
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill S-34, respecting Royal Assent bills passed by the Houses of Parliament, met this day at 9:35 a.m. to give consideration to the bill; to consider matters pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate; and to consider future business of the committee.
Senator Jack Austin (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have a quorum. We have two items that we want to deal with this morning, the Royal Assent bill, Bill S-34, and then rules relating to senators indicted and subject to judicial proceedings.
We have, as you know, heard from witnesses from the Monarchist League and from the University of Saskatchewan. We also received a proposal for discussion from Senator Grafstein who indicated that he would be here this morning.
Senator Carstairs is the sponsor of the bill. She has considered the discussion we had on this bill last week and has asked to speak to the committee this morning. She will have to leave just before 10 o'clock to attend a cabinet meeting.
Senator Carstairs, I am sorry we do not have more members here at this moment but I would welcome your comments.
Senator Carstairs: Mr. Chair, I have read with interest the suggestions. They have, in fact, been put into a potential amendment but I understand that Senator Grafstein has not yet moved the amendment per se. I wanted to talk to you this morning about the difficulties with many of the issues that he has proposed.
I would like to break them down into three areas because that is where they become very problematic. The first is the issue of visibility for the Senate. That is, as we all know, a perennial issue and he talks about the need to televise the Senate in its Royal Assent proceedings.
Senators, that does not belong in this bill. It is up to the Rules Committee - should they wish to make such a report - and then it is up to the Senate itself to determine whether there should be television coverage in the Senate of any particular function.
To actually place this in a government bill would, I suggest, make it appear as though the government was dictating to the Senate as to when the Senate should be televised. I happen to be in favour of having television, but I also know that a number of senators in our chamber are not in favour of having general television. I would be very concerned if we were to debate the issue of televising Senate hearings, be it Royal Assent or anything else, within this particular piece of legislation. That question should be separate and apart. Indeed, it is something that the Rules Committee in the future may wish to consider. I know they have a very heavy agenda as it is, but it could start with a motion by any individual senator on the floor.
I urge senators not to make that a part of a government piece of legislation. That is what you are dealing with at the present time. I truly do not think it is in the best interests of the Senate.
With respect to the second proposition that the deputy or the Governor General herself must always attend a Royal Assent ceremony, frankly I think you are violating the Constitution of 1867 and the letters patent constituting the office of the Governor General of Canada, which was passed in 1947.
The Governor General - by both the Constitution Act and the letters patent - provides the Governor General and, only the Governor General, with the right to appoint deputies for the purpose of exercising any of the Governor General's powers, authorities and functions. It certainly is well within the Senate's prerogative to draft a report saying we would like the Governor General to appear at Royal Assent ceremonies but, frankly, her letters patent allow her certain prerogatives. I would suggest that by amending the legislation in such a way, you would be dictating to the Governor General how she should exercise her discretion and, more importantly, you would be interfering with that discretion.
The same thing applies to the Prime Minister or to the deputy and the assertion that they must attend. The Prime Minister is first among equals but from a constitutional standpoint he is no more qualified to exercise the constitutional authority to advise the Crown than any other minister.
If the Rules Committee decided to formulate a report indicating that they believe that the Royal Assent ceremony must be given higher prominence and that ways to achieve that prominence would be through the attendance of the Governor General herself and through the appearance of the Prime Minister, that is fair ball. That is what you do as a Rules Committee. To put that in the legislation, though, I would suggest is not an appropriate exercise of our legislative authority.
There are other issues raised but those are the three that most concern me in this debate.
The Chairman: Is it a fair summary to say that the government is not prepared to countenance the proposals contained in Senator Grafstein's aide-mémoire. Would that be a fair summary?
Senator Carstairs: They believe we should make the decision on the basis of the legislation before you. That is to say, we either pass it and allow an additional means by which we can have Royal Assent - that is really what the present legislation does - or senators can decide they like the status quo, that they like the present legislation and would prefer to continue having Royal Assent in the same way they always have.
Since this is a government piece of legislation, obviously the government would prefer that you pass the bill. I have to be honest with you that I not only support this bill but I supported it as a private member's bill. Over my years as both deputy leader and leader and through my seven years of sitting in this chamber, I have missed, to my knowledge, only one Royal Assent ceremony. I am always there, despite the fact that I do not think it is a very viable ceremony any more.
We have hardliners in the chamber on both sides of this issue. I find it strange that some of those hardliners are frequently not at Royal Assent ceremonies. As I indicated before, it is often difficult to find 15 people to keep quorum for Royal Assent. It has been argued by some senators that it is not held at very convenient times but, honourable senators, it is usually on a Thursday at 4:30. There is no one in the chamber, to my knowledge, who cannot at 4:30 find a plane back to wherever they are going if they wish to get out of here at 4:30. However, lots of senators whose homebound flights take an hour or less choose not to remain for Royal Assent.
Ideally, Royal Assent would be held at different times but, again, we cannot dictate or change the rules of the House of Commons. Quite frankly, the House of Commons will not allow, through a piece of legislation, their rules to be changed any more than we would allow, through a piece of legislation, our rules to be changed. To say that we will have Royal Assent at 2:00 on a Tuesday afternoon - which happens to be the time for Question Period under House of Commons rules - would not make them too happy, any more than we would be particularly happy if we were told that it would be held in the middle of our caucus meeting on Tuesday.
There are choices to be made. We can choose to have the same procedure as we have always had, or we can accept that we will have an alternate, written procedure as recommended in this bill. I urge you strongly, though, not to put into this piece of legislation things that we do not have the constitutional authority to do.
[Translation]
Senator Gauthier: Senator Carstairs, in response to Senator Austin's question, you stated that the government did not support these amendments and that you were not convinced of the appropriateness of making it mandatory in the bill to broadcast this ceremony.
The only reference I was able to find is in paragraph 2.e) of the confidential draft of the motion to amend Bill S-34, and I quote:
e) to allow the royal assent ceremony to contribute to the better dissemination of information [...]I expect you took this to mean that the ceremony would be televised. To my knowledge, there was never any question of televising the ceremony. Admittedly, we did discuss it and I would be in favour of the idea. Some of Senator Graftstein'samendments mention giving the ceremony broader coverage. That can mean many things, but not necessarily televising the ceremony. Or am I mistaken?
[English]
Senator Carstairs: The recommendations I am referencing are found in proposed clause 10, subclauses 1, 2 and 3 where there are specific recommendations with respect to television. My point was that it is best that those decisions be left to the discretion of the Senate. It is our chamber. We make that determination. I do not think it should be made in a bill to be approved by both the House of Commons and the Senate. We make that decision in exactly the same way that the House of Commons makes its rules about televising.
Senator Joyal: I am happy to welcome the government leader this morning. The government leader is irreproachable in terms of attending the Royal Assent ceremonies and making sure, as long as it is in the present way, that it is done with respect for the characteristic of the function. That is not the point. Essentially, we have a bill that has consequences and we try to understand those consequences. I do not in any way question the integrity of the government leader and her attendance at Royal Assentceremonies.
One point in the presentation that leaves me pondering is the personal attendance of the Governor General. I am not sure that requiring the attendance in person of the Governor General once per session would, in any respect, infringe on the constitutionality of the prerogatives of that office.
The proof is that this bill at clause 2(b) is an infringement of the exercise of the prerogative. It says that the Governor General will give sanction by written declaration. What happens if the next Governor General, contrary to those we have known in the past years, wants to be here for every Royal Assent? What if the situation is reversed? He or she will be faced with legislation allowing attendance in the Senate at the first opening, for the first appropriation bill, but, for all the rest, a written declaration would be requested.
We would be intervening in the way that the Governor General exercises his or her prerogative. How can we reconcile the proposals with this bill, which in fact, is a way of framing the exercise of the Royal Prerogative? We are trying to find a formula to request the Governor General to appear in person once each session. I think there is a way to put that in this bill in referring to the letters patent that would still protect the prerogative of the Governor General, but would nevertheless express our bottom- line wish that we want to see him or her at least once each session.
The Chairman: There is nothing in Bill S-34 that I read, Senator, that requires the Governor General to be present even at a Royal Assent ceremony. The Governor General under the letters patent has the power to appoint a deputy to appear even at that singular ceremony. The prerogative of the Governor General is not changed in any way, shape or form by Bill S-34 in its current form or by its predecessors as introduced by Senator Lynch- Staunton.
Senator Joyal: We are, nevertheless, offering an alternative to the customary tradition, which is for the Governor General - or his or her deputy - to appear in the Senate. We are offering as an alternative the possibility to sign a declaration. There is certainly a change; otherwise, the bill would be of no substance.
If we are making a change by offering to the Governor General through an appointee - and I agree that it could be through an appointee - to sign a declaration but we would be doing something to the exercise of the prerogative.
The Chairman: As to the presence of the Governor General, Bill S-34 changes nothing.
Senator Carstairs: There is nothing presently that requires the Governor General to appear. Her letters patent are such that she can always send a deputy. Those are her letters patent. What clause 2 does, and particularly in subclause (b), is to expand the prerogative in a procedural way. That does not limit the prerogative.
There seems to be a belief that as soon as we put this into effect that we will never go beyond this; that there will then only ever be one Royal Assent ceremony per year. I do not believe that is the case. There will be more Royal Assent ceremonies than just the one absolutely prescribed by the law. However, it will also give the prerogative to the Governor General to do it by way of written declaration. Hence, you are giving an additional pro cedure. If anything, you are broadening the prerogative, not lessening the prerogative, as Senator Joyal would do.
My argument, Senator Joyal, is that the issue is whether we have any authority to intrude, if you will, on the letters patent of the Governor General.
Senator Joyal: I would like to consider the letters patent and the way they have been interpreted. I might then share the conclusion of the Leader of the Government in the Senate on this. I would certainly like to review the letters patents and the context in which they were issued and how they can be interpreted in the full respect of the Constitution.
There is no conflict between the objectives of the government leader in pursuing in this bill, but we must look at the text as written and ask how it will be interpreted 20 years down the road by other people who, unfortunately, will not the same people who are now around this table nor the present Governor General.
I agree with the objective of the bill, which is to allow for some sanction in a form that would respect the needs of the circumstances in which a sanction should be given considering the need of the day. On the other hand, I am of the strong belief that as much as there is a constitutional provision to allow the Governor General to give the Royal sanction, it must be maintained formally in the bill and not in a way that we skip through the back door what we do not want to do by the front door.
If we maintain the current custom, we will have the judicial system involved in the legislative process and that is what we do not want. That is not proper under the Constitution. The Crown and the two chambers are the essential three components of the legislative order. The judiciary is separate from that as a fundamental principle of our system. That is why the justices do not sit with us in the chamber, contrary to the other Parliament to which we like to refer.
How can we state that objective in a satisfactory way while providing another opportunity for sanction without resorting to ceremony? This is not a conflicting view. We want to state clearly our objectives so that we can meet them.
Senator Carstairs: I do have to leave, but I do want to read to you the letters patent:
Now We do hereby authorize and empower Our Governor General ... to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Canada, and in that capacity to exercise, during the pleasure of Our Governor General, such of the powers, authorities, and functions of Our Governor General as he may deem it necessary ...
The Chairman: Will you leave those with us?
Senator Carstairs: I will indeed.
Senator Grafstein: Does the leader have another moment?
The Chairman: She has a cabinet meeting that starts at 10 o'clock.
Senator Grafstein: Senator Joyal was kind enough to give me her points. I was preoccupied with another matter.
The Chairman: Would you like Mr. Robertson to review her points?
Senator Grafstein: I am up to speed. I think that Senator Gauthier made my point better than I could, which is if you take a careful look at my amendments this is not in any way, shape or form inconsistent with our rules. On the contrary, it says it will be televised in accordance with our rules. Frankly, that is a diversionary idea that I do not think the leader has fully thought through because my proposed amendments were carefully drafted to ensure that there was no inconsistency with the rules, the practices, the procedures, the conventions as it applies to television and so on. I think Senator Gauthier got the point and I would like to reiterate that point.
The minister raises a new point - I am sorry she is not here - and that is the difference between the letters patent and the Constitution. We should get an opinion about that. There are people who can provide us with an opinion on that. It is my view - and I gave it cursory thought - that notwithstanding the letters patent, the Governor in Council is not empowered to issue letters patent inconsistent with the Constitution. If there is aninconsistency between the letters patent, or the application of the letters patent or the interpretation of the letters patent, I believe - and I may be wrong on this - but I believe the Constitution takes priority.
The Chairman: Certainly, but what inconsistency are you suggesting?
Senator Grafstein: The inconsistency goes to the heart of the role of the Governor General. I say this with the greatest reluctance and the greatest respect. Two weeks ago, the Governor General made a speech to a journalists' dinner that was commented on widely in the press. Now, obviously the Governor General, with the advice of her ministers, is able to say what she wants to say wherever she wants to say it. Having said that, I did not see any reluctance on the promotion of that particular issue because it was a journalists' dinner. It was an interesting and fascinating speech that we should perhaps return to at a future date, but then, again, she was taking a role that in my view was a role she could take in her discretionary power assuming it was approved by the Crown.
That role, which is her discretionary role subject to the minister's Crown, is completely different and distinct from her constitutional duties. That therein may be a conflict. There is no question in my mind that her constitutional duties take priority to any other duties that she may choose within the discretion of her letters patent and her general discretion to exercise.
If the leader has raised this as an issue - and I think it is an important issue that goes to the heart of what we are talking about here - it is important that we take a hard look at the letters patent and try to craft out for ourselves a clear understanding of what is the appropriate Governor General's role.
Having said that, I have not moved these amendments. I have tabled them for discussion purposes. The leader is not here to make her argument. If, in fact, we choose to propose in a piece of legislation provisions that may in fact change the rules of the practices of the other place, there is nothing to prevent us from proposing that and passing an act to do that. They could choose to reject it if they choose.
However, to say that this house, this Senate cannot move amendments that in fact may change the mutual practices between the two houses - let me say that it does not appear to me to be a sound position. At any time, we have full legislative powers to change things, propose things. If the House on the other side chooses not to accept it that is okay, that is what they are entitled to do. However, to say we do not have the constitutional power to pass an amendment that may in fact directly or indirectly change the customs or the practices of the other place is not appropriate. I think we should get a view from our law officers about that.
The leader has raised many interesting issues and before I am prepared to deal with this clause-by-clause we need more evidence based on the new suggestions she has made. We can explore that and come back to clause-by-clause.
Senator Gauthier: Can I follow up on what Senator Grafstein just said? The statement of Senator Carstairs at the beginning disturbed me, because she said if we even adopt this, we are violating the Constitution. That surprised me. I did not ask her how or why because I did not want to get involved with that. She said we were violating the Constitution because we were affecting the right to appoint deputies. I do not understand. I want to read the transcript. Maybe I did not understand it properly so I will not make any further comment.
The Chairman: What she said was that anything that commands the Governor General to do anything is contrary to the constitutional role of the Governor General and then she read the Royal Patent, which essentially says that whatever powers the Governor General has can be delegated by the Governor General. There is no description of the Governor General's powers in the patent.
I am having a lot of fun with this discussion but in my own head.
Senator Lynch-Staunton: There is some good stuff in Senator Grafstein's proposed amendments, but I do not think they should be in the nature of amendments. If they are to be implemented, it would be in the nature of regulations arising out of the act. If they are put in as amendments they are so fine-tuned and detailed that any changes along the way would have to be made because some of the proposals that cannot be implemented will have to be done through parliamentary action, whereas regulations can be done in a more timely manner.
As far as I know - and I stand to be corrected by either Mr. Robertson or Mr. O'Brien - the ceremony of Royal Assent now, which has been in place for years, does not arise from any legislation. It is strictly based on a memorandum from the clerk of the Senate outlining the procedure from the moment the letter arrives from the Governor General to the sending of the black rod to the knocking on the door to the bowing three times, to the summoning of the chamber and to the ceremony itself. Am I correct in that?
The Chairman: There has to be Royal Assent but there is no description in the Constitution of what that amounts to.
Senator Lynch-Staunton: There is no description in the legislation either. Is there anything right now to stop a written declaration from taking place?
The Chairman: It is a good question. My guess is since 1981 - the Supreme Court decision - this is probably a convention. It may not be a convention of the Constitution but if it is Parliament, it is strictly within the authority of the federal Parliament to deal with and, therefore, it can deal with it by statute. That is what I think. Unfortunately, Mr. Audcent is not here but I think he would agree that that is the legal situation.
Senator Lynch-Staunton: What if the Governor General said, "I am not going. You send the bills to me and I will sign them at the House?" What is to stop Parliament from refusing that?
The Chairman: Because since 1867 we have followed a certain procedure.
Senator Lynch-Staunton: It is not legislated; it is convention.
The Chairman: In 1981 the Supreme Court said that it may not be a legal question but there is a conventional practice on which the system is entitled to rely until there is some formal change.
Mr. James Robertson, Researcher, Library of Parliament: The Australian Constitution, to my recollection, is worded the same way as the Canadian one, but there the practice evolved differently in the early years of their Confederation. It did take the form of executive declaration at Government House. There was no legislation to change theirs or to create this new system but that evolved in Australia.
In Canada there is, in addition to the issue of convention and whether convention can change unilaterally by one party acting alone or whether there needs to be some consensus or some legislative action by Parliament.
There is also the issue that was raised during the previous incarnation of whether to debate this bill and to pass this bill requires the Royal Consent. That issue has never been, as I understand it, absolutely determined. If Royal Consent is required, then arguably no change could be made to the current procedure without the Governor General's agreement.
The Chairman: We do have consent to Bill S-34. I wanted to ask you the difference between 1867 and Australia's change of 1901, approximately. When and how did the British house change its practice?
Mr. Robertson: The British did not have Royal Assent by the Crown since 1700, I believe. It was done by the commissioners, who acted through the 20th century up until the 1950s. Their change was made by statute. That is why, in Canada, the statutory route was adopted by the previous government, by Senator Lynch-Staunton and by this government. It was made by statute with royal consent passed by Parliament in the 1960s.
The Chairman: In my view, there are no constitutional issues here. I believe these are issues of politics in the non-partisan sense, issues of presentation. We have the question of the role of the Senate in the parliamentary tradition. Is that important to the Senate? Does it enhance the Senate to have Royal Assent take place? Senator Grafstein's points are built on that implied premise that somehow the Senate is enhanced in its role as a theatre for this event, which, as Senator Joyal said, links the Crown with Parliament. Does that enhance the Senate in public esteem? If you think it does, you will want to continue it. If you think it does not and there are other ways to enhance the Senate that are of greater value, you may think the ceremony is not so significant.
The second question with respect to the procedure is essentially the argument made by Senator Grafstein earlier. That is public notice. Does Royal Assent serve as a unique and valuable way to give notice of legislation to the public, or would an announcement by the Speakers in both chambers serve equally well to tell the public that a bill has received Royal Assent?
The question that Senator Joyal has argued for the unique role of the Crown and the importance of enhancing the Crown - not the Senate, but the Crown - as a source of unity in the country and perhaps even as a distinction in a era of economic integration with the United States. If this symbol of our political indepen dence can add a small flourish to the arguments of Senator Joyal and Senator Grafstein, that may be an important reason to enhance this ceremony.
This idea has been around for a long time. It has nothing to do with political partisanship. The question is to be settled on those points. It is a matter of each senator's view of the correct emphasis. I propose that we move on.
Senator Lynch-Staunton: May I complete my thoughts?
The Chairman: I am sorry. Please do.
Senator Lynch-Staunton: There are elements such in Senator Grafstein's proposals that are too rigid to be incorporated in an act - such as the quorum requirement and the timing requirement. There are elements that we cannot think of now which may eventually be shown to be wrong.
I suggest the bill be passed as it is. Everyone seems to have accepted the idea of a written declaration. The proposed amendments confirm that. This document of proposedamendments can then be used as a starting point to discuss with the House of Commons and the Governor General how the legislation can be implemented through agreement between the three main parties.
If all these elements were incorporated in the bill, in the very near future parts of it will be found to be difficult to implement. Parliament will be seized with making corrections that could be more easily done through the Rules of the Senate.
The Chairman: There is no provision in the bill for regulation to be passed by the Governor in Council. Senator Carstairs' argument is that, if the bill is passed, both chambers would need to consider any rule changes consequent upon the passing of the bill, and there would have to be some changes in our rules. Senator Grafstein's aide-mémoire touches on some of those rule changes.
Senator Losier-Cool: My question follows on the comments of Senator Lynch-Staunton and the Chair. I must say that I am in support of the status quo, but we could use the status quo along with some of the provisions in Senator Grafstein's document. You have convinced me that we can make these enhancements without legislation.
I think the Royal Assent ceremony is very important to the Senate. You have just said that this is not a partisan issue. It must then be very important to the Senate. All through the years, both sides of the house have wanted to improve the actual form.
That is why I was not in favour of Bill S-34 right from the beginning. To me this bill will dilute or reduce the role of the Senate. Every Monday morning, when I greet the 100 youth from Encounters and from the Forum for Young Canadians, they are very interested in what I have to tell them, including the meaning of Royal Assent. Are we now going to approve Bill S-34?
The Chairman: That is up to the committee. We can proceed in one of two ways. We can agree to accept Bill S-34 and, in our report, say what rules of the Senate should be adopted to accommodate this bill. We can make comments with respect to the importance of Royal Assent. We can express the view, held by Senator Carstairs that it is desirable to have more than one such ceremony. We have the transcripts of senators' arguments. We can include those arguments in our report.
We could move forward with Bill S-24, as Senator Lynch- Staunton is suggesting. We could ask for amendments. We could defer this discussion and have a small working committee to see if they can do something with amendments.
I believe that Senator Carstairs put it clearly to us. It is this bill or the existing situation, as far as the government is concerned. That will be our choice ultimately. Is that a fair summary?
Senator Losier-Cool: Do we not have three choices? The status quo, Senator Grafstein's amendments, or this bill as is?
The Chairman: The government will not approve any amendments. Essentially, I heard Senator Carstairs say at this committee this morning - and Senator Robichaud can correct me - either pass Bill S-34 or forget it.
Senator Bryden: If I have to decide that this morning then I will say forget it. I found the discussion last week with the professor very helpful and very instructive. It summarized for me something that I had been struggling with as to why it troubled me so much to turn this ceremony into what will ultimately result as a perfunctory appearance once a year and the rest will all be done clerically, meaning that your minimum always is what happens.
It also troubles me that many times I ask, "Why are we doing this in our Rules Committee?" and the answer I always get is, "We are trying to enhance the Senate; we are trying to enhance our role; we are trying to improve the way the public loves us so much." The professor's point was that one of the things that you have to realize you are doing is that you are detracting from the role of the Senate and its chamber if in fact you go to what is a clerical process that occurs most of the time.
Just as a comment, I had to smile to myself - and Senator Lynch-Staunton will appreciate this - when he was saying, "Why do we not just leave it to regulation?" That is unusual coming from Senator Lynch-Staunton to say, "We should not put it in the act, let us put it in the regulations." That is an aside.
I think we need to look at Bill S-34. To say that it will not accept any amendments I do not think is valid. If Bill S-34 said that the normal course of events would be that the Governor General and/or his or her designate shall appear in the Senate and do what we always did, then in exceptional circumstances maybe do this now? In exceptional circumstances, we can do it clerically and then you can govern the balance of it by regulation. That would be quite a different thing to me.
One of my basic concerns is - public or not - how much of this is for the convenience of people, whether it is the Governor General or the Supreme Court justices.
No one has ever focussed on dealing with the Governor General's office, the House of Commons, and with our own people to say how could we enhance this particular ceremony to the point that it is something that would be a credit to the Parliament of Canada, the Crown, the Senate and the House of Commons. Declare a budget and get an events person.
All of us - but Senator Pitfield certainly not - have been politicians and we know that it is possible to do that. How did we fill the Senate chamber on Remembrance Day? They were there to honour these people. We have had the company of young Canadians who show up here any number of times, we have a foyer full of kids because it is Kids' Week - Senator Pearson is very successful in doing what she is doing.
Do you mean to tell me that if we put our minds to it we could not make this event an event that even the local politicians, who live in the House of Commons, would not be happy to attend, bring their civics class and have their picture taken because it would help get them elected?
That is the end of my harangue. It is really troublesome to me to act on it now.
The Chairman: I see a kernel of progress in what you said.
[Translation]
Senator Poulin: I understand the Leader of the Government when she states clearly that the current procedure is not working. I totally agree with her stated objective. However, is legislation the way to go? Since the Thompson affair, there has been a collective will to ensure greater transparency and accessibility. We want to keep Canadians more informed about the true work being done by the Senate. The danger as I see it with Bill S-34 is that the final stages of our work as legislators will not be seen by the public. How could we make the final stage of the legislative process more efficient through Bill S-34? As Senator Bryden pointed out, the Senate does certain things very well. Therefore, how could we mark this final step in the process and at the same time, respect the aim of the ceremony?
Senator Robichaud: Two Royal Assent ceremonies were held recently. How many honourable senators were in attendance? My feeling is that this ceremony loses considerable meaning when senators are absent. The number of Members who attend can be counted on one hand. We need to alter the process so that, when need be, a bill can receive Royal Assent within a certain time limit. However, when the Senate is required to give Royal Assent to several bills, perhaps we could hold a more formal ceremony and invite some people to attend. Currently, we do not give this ceremony the attention and consideration it merits. We could come up with a new formula - without amending the Constitution, of course - which would lend the ceremony greater meaning.
The Chairman stated that the Leader of the Government was not willing to accept any amendments. I do not believe that any amendments have been tabled to the committee. However, are there not some draft amendments? The leader mentioned that the government could not proceed with the proposed amendments.
Senator Poulin: Do we need to resort to legislation to alter an everyday practice that is no longer working?
Senator Robichaud: It is the appropriate way to proceed.
[English]
Mr. Robertson: If it was merely a matter of taking the status quo and making slight changes to it in terms of turning it into an event, inviting people, et cetera, then there would be no need for legislation. If there is any intent to allow any form of executive declaration as an alternative on one or more occasions per year, there needs to be legislation.
Senator Joyal: Before I make my proposal, I would take exception to the statement that it is this bill or no bill. I heard that in another committee some weeks ago from a representative of the government who said that it was their bill and that was it; thank you very much.
I am sorry. We have a bill here that has not been introduced in the other place. It is what I call a "virgin" bill. We can discuss the views of the government and I absolutely take that as the starting point. The views of the government are, in fact, a prolongation of views that have been put forward by Senator Lynch-Staunton.
We recognize on all sides the merit of reviewing the procedure, the objective. We recognize that, in some circumstances, there should be a more expeditious way of granting Royal Assent within the minimum obligations for both chambers and govern ment representatives. We recognize, too, the principles of our Constitution. If we are to improve the system by legislation, we want to improve it while respecting the principles, the roots, of our Constitution. With the greatest respect for the learned justices of the Supreme Court, they want to be out of the system, too.
There is some common ground in our discussions, which have been initiated by Senator Lynch-Staunton and others over the last four years that I have been have attending this place. I think we can achieve something here. We want to protect the integrity of the institution within the system, as Senator Bryden has mentioned.
The government says that it essentially wants to do all of that, but it is missing the last link in the chain. They would still bring back a justice of the Supreme Court into the Governor General's chair, the only one time that we would have to see the Governor General. I am not sure that the constitutionality of that position is absolutely sound and proof.
Section 44 of the Constitution itself says, "Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons." We have a power to legislate.
The Chairman: I understand that.
Senator Joyal: When we legislate in the full respect of the fundamental principle of the legislative order of Canada, we are not violating the Constitution.
I am not proposing that I have the final definite answer or rebuttal to the government proposal that any changes to the magic formula of clause 2(a) would be an affront to the Constitution. I would be the last one to propose that, especially with my past involvement.
On the other hand, I want to be sure that we are not missing our very objective: respect for the integrity of the role of the Senate and of the Governor General in the legislative process. That is what we want to achieve.
Senator Lynch-Staunton was right to raise this because the current custom goes against those principles. Because we want to correct a situation, we should not in fact enshrine the elements of the situation.
We should hear constitutional opinion from experts - from our legal adviser and others - on the essential elements of the amendments, which would be the Governor General in person. That is the meat behind all this.
I think that Senator Lynch-Staunton has made a very good point by saying there are elements that should be in the rules. However, we will have to amend the legislation to add that the Governor General may enter rules pertaining to the function.
If a minister comes to us and says that it is this bill or nothing while we are engaged in the study of a virgin bill, I am not sure that is the right approach. I do not want to hear - I am getting inflamed this morning - ministers coming to a Senate commit tee and saying, "It is my way or no way."
I am sorry if I am making a caricature of the government leader on this. That is not my intention at all. Otherwise, what are we? A registered office of Parliament? Shall ministers come to table their bills and we will just say, "Thank you. Approved"? I would not come here on a Tuesday morning at 8:30 to attend such a meeting. I am sorry.
The Chairman: Let me make a couple of points. We have all been around politics for a long time. Government ministers will always say that they want it their way and that changes are not welcome. Some of us used to be ministers. There are dynamics that cause ministers to say those things, but the reality is that there is flexibility within a certain context for change.
We have all agreed so far that we want to give validity to the Royal Assent process, to the role of the Senate, and to the Crown in Parliament. I do not know if we need constitutional advice. It is very clear that we cannot in any way amend the role of the Governor General. We can propose amendments obviously to the other place. Senator Grafstein is absolutely right there.
If we change the bill in any substantive way, it will require a new consent from the Governor General, which may not be forthcoming. That may take us back to the status quo.
To short-circuit some of the discussion, I suggest that Mr. Robertson will write a draft report that incorporates the key points we have made on the Crown in Parliament, the importance of a procedure that informs the public, that attracts public interest in Parliament itself. Then we will come back and look at that particular narrative, which will pick up some of Senator Grafstein's points. Once we have that, I will try to discuss with some of you the changes you would like to see to the bill itself. That is the key point for our future discussion.
Senator Poulin: I have a question of information. Usually, when we have a bill before us it has been prepared by a department and we know that that department will develop the regulations. In this bill, who would be responsible for developing the regulations?
The Chairman: There will be no regulations, there will be rules proposed by this committee to the Senate.
Senator Poulin: Will there be no regulations then?
The Chairman: No, you cannot regulate in this area because it relates, as Senator Carstairs says, to the central procedures of the two chambers.
Senator Gauthier: I will not support this bill as is. I do not think Senator Carstairs has convinced me that we should change our mind and that we should just fold the tent and move. I believe we should have a preamble to this bill though.
The Chairman: I agree.
Senator Gauthier: It will not change the substance of the bill but a preamble explains better. I am not the authority, but I am sure we could find someone to draft a preamble.
I am concerned about the visibility of this ceremony more than anything else. I am also disturbed about the fact that it is a justice of the peace who comes and sits in that chair and mixes the legislative and the judiciary. I think it is publicly the wrong image to give. If the Governor General wants to name some officer of the Order of Canada to replace her I do not mind, but to see a judge there would be embarrassing. I am not usually easily upset but I am upset when I see a judge there.
My last point is that I do not know how long you intend to keep this bill going.
The Chairman: Two more weeks.
Senator Gauthier: Another two weeks.
The Chairman: We have to deal with it in the next couple of weeks.
I want to make a point. We could recommend, in our narrative with respect to the bill, that the Governor General cease to appoint judges of whatever court as deputies to the Governor General and select from the ranks of the Order of Canada someone from time to time to come, if necessary, and act in the place of the Governor General to give Royal Assent. We can recommend that, but you heard the patent. The patent gives the Governor General absolute authority with respect to choice.
Mr. Robertson: I believe the reason the Governor General has chosen and deputized members of the Supreme Court of Canada is that whenever the Governor General leaves Ottawa, for a trip or a couple of hours or anything else, she must officially delegate her powers to someone. The judges of the Supreme Court of Canada not only are required by their statute to live in the National Capital Region, but they are invariably in Ottawa when she needs to leave. It is possible, for instance, to have a provision whereby other deputies would do the Royal Assent, but there may still be some requirement for other purposes to have justices of the Supreme Court available to replace the Governor General.
Senator Kroft: I have spoken little on this subject. Early on I offered the comment that I may have been very much off the beaten track of motions since my concern with the relevance of the ceremony, as we now know it, may be counterproductive, therefore more visibility and more publication may in fact be going in the wrong direction, but I will park that.
I specifically want to take issue with, as others have, the idea that it is this bill or no bill. Mr. Chairman, I also want to take issue with your suggestion that we have two more weeks to deal with this. I think this is another one of those Senate icebergs that has floated by and what we have seen above the surface has only hinted at some of the issues that are below.
I have no sense that we are even close to coming to grips with the fundamentals - at least in my mind - that may be coming to bear on this issue because they relate fundamentally to the Senate. They relate in my mind to some issues that are complex and I am not sure where my own mind is taking me on this.
I personally feel that the sense that we have a constricted time period in which to deal with this bill is not the context in which to work our way through this. There is no pressing time limitation. This is not an urgent issue and I would be much happier if we took a more leisurely and thoughtful approach to some aspects.
The idea of setting up a smaller study group may be useful. I believe it is easy but ill-advised to say that it is here, it is not a big thing, and we have to deal with it one way or the other. If that is the case, then I would say forget the bill, leave it as it is and come back to it when we can. However, I would not want to see us on a timetable.
I would much rather have an agreement, whatever the process would be, to say we have no bill and let us dedicate ourselves to some study on this subject because I feel we are far from shore in terms of understanding the right way to go on this.
The Chairman: If that is the sense of the committee, I am certainly ad idem. The government may have a time agenda but we do not have to follow it. If it is the sense of the committee to proceed at our own speed, I am happy to do that.
Senator Grafstein: I want to support Senator Kroft and Senator Joyal and what you have said also, Mr. Chairman. There is no need to rush to judgment on this. The government can say it is a "must have" but I think the "Kirby rule" is that the government has to justify why it is a "must have." I have not heard any justification as to why it is a "must have" bill and so on.
I want to touch on a point that Senators Bryden and Poulin made, which I share - I think Senator Losier-Cool and the Chairman said the same thing - and that is, how do we, in constructive way, take something that we think is an intrinsic part of our constitutional practice and make it a more visual, more exciting and more compelling event? That is more than stage management. It involves some rules, some thought and some consideration.
I just give you an example. Yesterday there was a magnificent event, which was nothing but symbolism, that granted an honorary citizenship to Mr. Mandela, which I applaud and I support. Would it not be wonderful if we, when we have an opportunity three or fours times a year - and it is my proposed amendment, Mr. Chairman - to celebrate the Constitution of Canada and the Governor General's role in Canada so that the people and the students can understand it better.
We spent all that time yesterday, useful time, to celebrate the idea of citizenship. Yet we do not spend an equal amount of time celebrating what Senator Joyal says goes to the fundamental heart of the country, which is the role of Parliament, the role of the Senate and the role of the Crown in Parliament. It is sort of bizarre in a way to say that we cannot do that within our attributes. I think both Senator Poulin and Senator Bryden have said that.
Finally, the leader raised some disturbing questions about the role of the Governor General, which we have never really explored. She has raised it now, on behalf of the government. She goes to the question of letters patent.
I just asked Senator Joyal - and perhaps you will recall, Mr. Chairman - what do our letters patent say? What does our commission say? We are compelled to be here without excuse when we are compelled to come. I do not know whether your proposal stands in the rules, but the requirement is for us to come - not only by our letters patent, our commission and our oath, but also by the rules. Why should we be here? Why? What is the purpose of that? It is to fulfil our constitutional duties.
Why is it that we as senators who are subordinate to the Governor General are required to attend to fulfil our constitutional duties in the Houses of Parliament, yet the government suggests that the Governor General is not compelled to do the same on the same basis. We all accept that as one of her primary duties.
I find that to be an inconsistent argument. I put that on the record because I would like the Leader of the Government to return and respond to some of the arguments made here today.
Let us be practical. If you want to have to small working committee, I am open to changing the proposals that I have made into a regulatory form that would make it more susceptible to change. We can do it in a simple way. We can do it by rules, if we choose, and not by regulation.
We have four choices. We could do it by statute, by rules, by a letter or by regulation. I am prepared to do it by rules.
We should be flexible, but let us keep track of our objective. The means are not as important as the objective, which is how do we heighten the visibility of the Crown in Parliament and the role of the Senate as an important component in our legislative process? That is the key.
The Chairman: I will sum up to assure that Mr. Robertson understands what we want in his draft. My understanding of the view of this committee is that we want a narrative description of the importance of Royal Assent, its historical background including the way in which Royal Assent has been practiced in Canada, as well as some comments about other jurisdictions and what they have done.
Senator Grafstein: We do not need that.
The Chairman: That is a fair balance.
Senator Grafstein: I do not the committee is ready for that. I do not think there is consensus yet.
The Chairman: I am not talking about a consensus. I am talking about a working draft of the arguments that we have heard. Once we have the draft in front of us, we can decide from there what to change or delete. We have to get something on paper in order to focus. I am looking for Mr. Robertson to do that.
Senator Kroft: On that suggestion, could it be a working memorandum as opposed to a structured document?
The Chairman: Whatever you like. We can call it anything you like.
I would add two more points. To capture the various views here, Mr. Robertson will need to look at the reason why Executive Assent is proposed by a generation of people from 1983 on; what are their reasons for proposing it; and what are the principle other views?
When we have these arguments in front of us in a documentary fashion, we can then try to take some decisions about what it is we want to say in our report and what amendments we want to propose.
Senator Gauthier: Senator Carstairs started by criticizing the televising issue. She made a rather strong statement. We should not even touch that in this bill. Perhaps, I misunderstood.
The Chairman: That is what she said.
Senator Gauthier: She said that we were off-track in talking about televising. We should televise those things. I am fed up with the double standard. The House of Commons is televising, and the Senate is not. It does not make any sense.
The Chairman: Senator Carstairs invited us to look at the question of televising the Senate. She said that there were two different views. We can, under our rules, undertake any topic if it is related to the management of the Senate.
Senator Gauthier: I will put a motion on the floor.
The Chairman: We can do it without a motion, if we wish. If it is the wish of this committee, we can do it without a motion.
Senator Gauthier: Let us find a better way then.
The Chairman: We will put it on our agenda, if that is the wish of the committee.
Senator Bryden: I have two points. One is not mine; Senator Losier-Cool asked me to put it on my list. Through the past years, have there been Governor Generals who whether more present at Royal Assents? Is it really a matter of personal choice in how they treat this? Could we have some indication of that?
Mr. Robertson: For the record, I believe Senator Murray and others have advised this committee in previous meetings that the protocol is that the Governor General is advised by his or her officials not to attend if the Prime Minister is not also planning to attend. Prime Ministers over the last 20 years or 30 year have not attended Royal Assent ceremonies as frequently as they did prior to that. As a result, it appears that governors general have also adopted practice of not attending.
I will try to get some information about the personal attendance by Governors General. I think that we will have to go back 20 years or 30 years to find a time when Governors General attended routinely.
Senator Bryden: Going back 20 years is not a long time in the history of an institution that has survived over 130 years. We are about to change it for the next 130 years.
The Governor General designates the people who can represent her. Would you at least explore the possibility that if she uses someone other than judges, that it could be lieutenant governors?
The Chairman: No.
Senator Grafstein: No.
The Chairman: It cannot be.
Senator Grafstein: There is the separation of powers.
The Chairman: Their authority is provincial.
Senator Bryden: Solely provincial?
The Chairman: Technically, she could do it, but it would not be a practice that anyone would encourage.
Senator Bryden: You would not encourage it, but maybe I would. The problem sometimes is that we do not always agree. My point is simply, why could that not be done. If it could be done, it would be quite a unifying thing to happen. If the Governor General could not be there, the Lieutenant General of Prince Edward Island would do one this year. If it cannot be done, it cannot be done. However, if it is just because we do not do it, that would be different.
The Chairman: Provinces would disagree with the use of their lieutenant governor in a federal context. They would want to keep the division of power and the division of authority. The lieutenant governor is in right of the province.
Senator Grafstein: In the right of a province, only.
Senator Bryden: Could that please be checked out?
Senator Joyal: I wanted the point of constitutionality to be on the table, because it is a core element.
The Chairman: It will be raised. We will ask Mr. Audcent to look into it.
We will move in camera with your permission
The committee continued in camera.