Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 18 - Evidence, May 8, 2007
OTTAWA, Tuesday, May 8, 2007
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 288, to ensure Canada meets its global climate change obligations under the Kyoto Protocol, met this day at 5:32 p.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: Good evening, ladies and gentlemen, and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources, which is presently considering Bill C-288.
Before we begin I would like to introduce the members of the committee. The distinguished deputy chair of the committee is Senator Cochrane from Newfoundland and Labrador. Senator Angus represents Quebec, Senator Kenny represents Ontario, Senator Sibbeston is from the Northwest Territories and Senator Spivak is from Manitoba. Senator Mitchell, the sponsor in the Senate of Bill C-288, represents Alberta. Senator Lorna Milne is from Ontario. Senator Murray represents Ontario. Senator Tkachuk represents Saskatchewan. Senator McCoy represents Alberta. My name is Tommy Banks, and I have the honour of chairing the committee.
The witnesses today before us, Lynda Collins, an assistant professor at the University of Ottawa, and James R. Hurley are here to talk to us about a question that was raised before us in an intervention by Senator Murray in the Senate. I will not presume to describe it, but it has to do with the constitutional aspects of the application of Bill C-288, should it become an act of Parliament and should it come into force. I know that we will be interested in hearing from our witnesses and engaging in a discussion with them. Mr. Hurley, you have the floor, sir.
[Translation]
James R. Hurley, as an individual: Thank you, Mr. Chairman, for inviting me to participate in your proceedings relating to Bill C-288. As a former professor of political science and a former constitutional advisor to the Privy Council Office, I shall restrict my comments to institutional and constitutional issues raised by this bill, thus excluding matters relating to scientific and technical aspects of the Kyoto Protocol as well as public policy issues.
The committee secretariat provided me with a list of statements and questions for comment. I am pleased to present you with my remarks.
[English]
The first statement for comment is the following: ``It has been suggested that a central tenet of the Canadian parliamentary system is a separation of powers and a system of checks and balances between the legislature and the executive.''
This statement is, in fact, erroneous. It is the American congressional system that is based upon a separation of powers between the executive and legislative branches with a system of checks and balances. The president and the members of cabinet cannot sit in Congress, and they cannot initiate bills in Congress, although the president can send a legislative wish list to the Speaker of the House of Representatives for possible consideration. Only members of the House of Representatives can initiate money bills. However, the president must sign bills adopted by the two houses of Congress for them to come into force. The president can exercise a veto over congressional bills, and it is the threat of this veto that allows the president to negotiate with the House of Representatives and the Senate. The legislative output of Congress is a result of complex negotiations, and no one individual or institution is necessarily responsible for it.
The Canadian parliamentary system of responsible government, on the other hand, is based upon the fusion of executive and legislative powers. The prime minister and members of the cabinet must have seats in Parliament or seek them in a timely fashion. Only members of cabinet can introduce money bills, that is, bills to spend money or raise revenue in the House of Commons. The prime minister and cabinet are referred to as ``the government,'' and the government must maintain the confidence of the House of Commons or else resign or recommend dissolution. Because it must maintain the confidence of the house, the assumption is that the government is responsible for the legislative output of Parliament and will be held accountable to the electorate when the next general election is held.
The second statement for comment may be summarized as follows: Bill C-288 would reverse this dynamic, for in passing the bill Parliament would impose its will on an unwilling government by compelling it to do something it does not wish to do. I would add that it makes the government responsible for the implementation of the Kyoto Protocol, and this may be the crux of the matter: Does this muddy our concept of responsible parliamentary government? The Kyoto Protocol has sharply divided partisan views in Canada. By resolving the issue through legislation agreed to by opposition parties in this Parliament and making the government responsible for its implementation, does this make Kyoto largely a non-issue when the next general election is held?
Bill C-288 raises another question related to responsible parliamentary government in Canada. It has been ruled that Bill C-288 is not a money bill, but clearly its provisions will have significant implications for the allocation of resources within the public service. The bill provides that the minister must prepare a complex climate change plan within 60 calendar days, or 40-odd working days, of the act coming into force and publish the plan within two further days. Is this time constraint reasonable? If the government had prepared the bill, it would have had to assess this issue carefully.
By way of example, this year we celebrated the twenty-fifth anniversary of the adoption of the Canadian Charter of Right and Freedoms on April 17, 1982, but the provision dealing with the equality rights did not come into effect until three years later so that governments would have adequate time to ensure that all existing legislation was in line with the equality rights provision. The question then arises, should the government have some flexibility in setting this, the 60-day requirement, and other deadlines to be met under the bill? Otherwise, the plan produced within 60 days may be a pro forma report to meet legal requirements, but is this desirable? I will return to this issue later.
[Translation]
I was asked if there are other examples of private member bills that forced the government to act against its own policies. There are a few, such as the Act to amend the Excise Tax Act (elimination of excise tax on jewellery), which was assented to on November 25, 2005 and which was later on integrated by the government in its budget.
However, there is a major difference between this legislation, with its rather limited scope, and Bill C-288 which raises one of the most prominent public policy issues in Canada.
[English]
It follows that while there are relatively minor precedents for Parliament proposing and imposing measures on the government, there are no precedents of the magnitude of Bill C-288, which seeks to resolve one of the most prominent and hotly debated public policy issues facing Canadians, by obliging the government to implement the Kyoto Protocol, which it does not wish to do.
If Bill C-288 comes into force, must the government comply with it? The answer is yes. If the government did not comply with the provisions of the Bill C-288 what consequences, if any, could follow? The government could be taken to court or the government could be held in contempt of Parliament and face a vote of no confidence.
A number of issues are not raised in the list of statements and questions provided by the committee secretariat that I wish to address, some theoretical and some practical.
Let us examine the theoretical issue first. While I believe that they can be dismissed as practical options, they will help clarify the steps between adoption of a bill by both houses of Parliament and Royal Assent.
After adoption of a bill by both Houses, Royal Assent does not occur automatically. Geoffrey Marshall, in his 1984 book Constitutional Conventions: The Rules and Forms of Political Accountability notes that in the United Kingdom, the prerogative powers of the crown are exercised on ministerial advice. He asked rhetorically whether, in the case of a private member's bill, which the government did not wish to have enacted into law, ministers could advise that Royal Assent not be given. He provides no answer.
In Canada, the government house leader in the House of Commons decides when a bill or bundle of bills should be sent for Royal Assent. The government house leader in the House of Commons communicates with the government house leader in the Senate, who asks the clerk of the Senate to take the necessary steps. While an individual bill could be sent on its own, the general practice in Canada is to send bundles of bills that have been adopted by both Houses. There is no precedent in Canada for instructing the clerk of the Senate to withdraw one bill from the bundle, such as Bill C-288, when the bundle is sent for Royal Assent. To do so would be contrary to established practice and convention, it would place the clerk in an untenable position and it would create a constitutional controversy. This course should not be contemplated, in my view.
Alternatively, the Prime Minister could, by instrument of advice, advise the Governor General not to give Royal Assent to one of the bills in the bundle. Again, this course would be contrary to established practice and convention, place Her Excellency in an untenable position and create a constitutional controversy. This course should not be contemplated.
Once again, we return to the distinction between the American system of the separation of powers with its checks and balances and the Canadian system of the fusion of executive and legislative powers. The American president can exercise a veto over bills adopted by congress. The assumption in Canada is that the government will dominate the legislative process, but wields no veto.
Let us return to practical issues. It was noted above that making the government responsible for implementing Bill C-288 prior to an election might muddy the question of responsible government and make the issue of the Kyoto Protocol confusing at the time of the next general election.
Furthermore, the time constraints for meeting certain obligations under the bill might be difficult, if not impossible, to meet in a meaningful way as opposed to a pro forma way. One way to introduce flexibility and meet both concerns would be to add a coming-into-force clause to Bill C-288 to state, ``The provisions of this act come into force on a day or days to be fixed by order of the governor in council.''
This course would allow the government to determine if it wished, in the last analysis, to assume responsibility for Bill C-288, and, if it wished, to delay the coming into force of certain provisions with tight time constraints.
Of course, the government might decide not to have the act come into force prior to the next election. In this case, the opposition parties would need to set out their commitment to Kyoto in detailed fashion in a statute, and the question of bringing it into force would no doubt be a key election issue.
An alternative would be to seek testimony on whether the time constraints in certain provisions of the bill can be met realistically and meaningfully without major disruption to the allocation of resources in the public service and what, if any, delays might be necessary to allow the government to meet its obligations. A coming-into- force clause might provide that the whole act come into force, for example, six months after the day on which the act receives Royal Assent.
A more complex approach would be to have the act come into effect, subject to different coming-into-force provisions for various parts of the act. This approach might require redrafting certain provisions.
While there are precedents for Parliament proposing and imposing measures on the government, there has never been a proposal of this magnitude and importance, which runs the risk of confusing issues of responsibility in our parliamentary system of government and disrupting the government's management of the public service.
If minority governments are to become more frequent in the future, political actors may wish to assess where they wish this bill to lead in the short and long term, and the precedent that may result.
The Chairman: Thank you, Mr. Hurley.
We will come back to you with questions in a moment. Professor Collins, you have the floor.
Lynda Collins, Assistant Professor, University of Ottawa, as an individual: Thank you for giving me the opportunity to participate in this process. I know I speak for many Canadians when I say we appreciate the work that you do in this committee, and, in particular, on this important piece of legislation.
I was asked to comment first on a couple of propositions, and will try to limit my comments to the legal questions, leaving the public policy questions to other, more capable, witnesses on those points.
I am in complete agreement with Mr. Hurley regarding the accuracy or inaccuracy of the first proposition.
The first proposition is that, in effect, government proposes measures to Parliament. Parliament does not impose measures on a government that it does not want to implement. The proposition is a direct reversal of what is actually the case. It was true in 1688, in the U.K., but since the Bill of Rights Act of 1689, parliamentary supremacy has been a key principle of the law of democracy both in the U.K. and in Canada. We do have different branches of government. In Canada, there are the judicial, executive and legislative branches with a hierarchal relationship between the executive and legislative branches. The Supreme Court of Canada has put this in as clear language as we could possibly hope in the reference regarding the remuneration of judges where the court held:
. . . here is a hierarchal relationship between the executive and the legislature, whereby the executive must execute and implement the policies which have been enacted by the legislature in statutory form.
In other words, Parliament passes laws, and government governs within the limits of those laws.
This principle is descended from the U.K. system. It has been a part of Canadian democratic law since the beginning of the nation, since confederation.
While it may be politically unpalatable for a government to be forced to do something by Parliament that it does not want to do, government has no legal or quasi-legal veto power over statutes passed in the House of Commons in Canada.
Following up with the second question, if Bill C-288 were to come into force, would this establish a precedent for Parliament proposing and imposing measures on the government?
As you have seen from my written submissions, my position is no. It is irrelevant in the sense that this principle of parliamentary supremacy has been with us for centuries. This bill will not alter the Constitution. In other words, we are stuck with the Constitution. We must live with these basic principles of democracy law. The bill is merely an instance of political factors coming together such that parties have been able to use our constitutional structure in a way that is entirely consistent with its law and tradition.
I was surprised that the question as to the legal effect of Bill C-288, should it become law, was posed. This is a basic principle of democracy. Government is bound by the law, as much as is any citizen. It is an interesting context because, of course, Canada is bound by international law to comply with the Kyoto Protocol it ratified and agreed to implement. This domestic legislation merely conforms to that international law obligation. There is absolutely no ambiguity about the effect of statutes on the books. In other words, it is absolutely open to government to win a majority in the next election and repeal. The government of the day can repeal this legislation as the first order of business, if it does not like it. However, there is no option simply not to comply.
The questions regarding consequences are theoretical. It is correct that it would be easy to review judicially a government that failed to comply. The court would issue an order and those who did not comply would be in contempt. However, I do not believe that would ever happen.
Senator Angus: Mr. Chairman, for clarification, the witness said she does not know why this question was posed, and I do not either. As a member of the steering committee who has not been at all meetings, is the answer that you, as chairman, posed these questions?
I have a modest legal background, and I heard the Prime Minister say that if this bill is passed it will be the law of the land and we will observe that law. Why we are stirring the pot?
The Chairman: I cannot tell you about the language of the law. I do not have a legal background so I get to ask stupid questions.
Senator Angus: That is the point. Ms. Collins does not know why it was asked. I would like you to tell her that you wanted the answer.
The Chairman: It is important that we ask stupid questions from time to time and put them on the record.
Senator Kenny: Chair, I thought there was no such thing as stupid questions. There may be stupid answers, but not stupid questions.
The Chairman: It is fair to say, the decision was reached as a result of questions raised by Senator Murray in his intervention in the house, which is why I did not presume to bring them up here, because most of us have heard them.
I took that question, perhaps phrased wrongly, as one of the aspects of the matter that was raised by Senator Murray. I may be wrong, but I can ask stupid questions.
Senator Angus: I am in total agreement with the quizzical approach.
Senator Murray: It is more than that, senator. I am well aware that the Prime Minister settled the matter when he said that the government will respect the law passed by Parliament. However, before he made that statement, in the early stages of the bill there were various other statements made, some of them purportedly on behalf of the government.
Senator Angus: Were they made in Parliament?
Senator Murray: No, they were made in the media. The statements were such things as the bill is meaningless, and we will not necessarily be bound. The government was, of course, rationalizing the fact that they would not make the bill a matter of confidence. They said it is meaningless.
Senator Angus: I want to make it clear that as far as this government is concerned, there is no issue about the rule of law and adhering to it.
The Chairman: Nevertheless, I get to ask stupid questions. We will come back to that.
Senator Mitchell: If I may make one small intervention, if there were no question about government adhering to the rule of law, Senator Angus, the government would have accepted the Kyoto Protocol and would not have cancelled programs a year ago. It established that it was willing not to accept something that has the force of law.
Ms. Collins: I will wrap up quickly on that question, since it has been asked. We would like to have the answer for the record. The answer is that any citizen can review judicially a refusal to comply with the law. This situation is clear. The court would issue an order, and whoever failed to comply with that order would be in contempt of court. In theory, we could see a minister of the government hauled to jail for failure to comply with a law. However, I find it difficult to conceive that any government would take that course of action.
The Chairman: Thank you, Professor Collins.
Mr. Hurley has raised an interesting point, which had escaped my attention until this point, and evidently has escaped the attention of everyone in the House of Commons. This bill contains, in its present form, no coming-into- force clause. It says in two or three places in the bill ``when this bill comes into force'', but at no place in the bill is there any reference at all to it coming into force.
Senator Angus: We were hoping you would not see that.
The Chairman: Well, I did, but only because Mr. Hurley raised it.
Senator Cochrane: Professor Collins, I appreciate your appearing before the committee and the information you have provided with regard to our discussions.
As you said, in a democracy, government must follow the laws of the land. If that is the case, do we need Bill C-288? The Kyoto Protocol was set out for us. Do we need this bill?
Ms. Collins: To clarify, are you asking, since Canada has already bound itself to the Kyoto Protocol, why do we need the bill?
Senator Cochrane: Yes.
Ms. Collins: Canada is one of the jurisdictions in the world where international law is not justiciable until it has been enacted by domestic law. When Canada signs and ratifies a treaty, it undertakes to implement it through domestic legislation. Not all countries are like that. In some countries, they can take an international treaty to court as it is binding. Canada is one of the jurisdictions where, in order to make the international law essentially have teeth domestically, it must be incorporated into a domestic statute. That is what we agreed to do regarding Kyoto. We needed some kind of a statute to bring that treaty into domestic law.
Senator Cochrane: Thank you.
The Chairman: In respect of that question, is there any other statute extant, excepting Bill C-288, that would give effect to such a domestic law?
Ms. Collins: No, there is no other domestic Canadian bill or law in the process or on the books that would achieve Kyoto compliance.
Senator Spivak: To follow up on that, if the Kyoto treaty does not have force until domestic legislation has been enacted, are the penalties that accrue under Kyoto for not achieving the targets by 2012 in force for Canada if no bill is passed?
Ms. Collins: If there is no domestic legislation, the international legal obligation exists, and Canada would be in violation of that. However, it would not be justiciable in Canada. In other words, we cannot take the treaty to court and hold the government accountable. We cannot take the treaty to court against emitters, et cetera.
Senator Spivak: In other words, the government could say that since we do not have domestic legislation, those penalties do not apply to us?
Ms. Collins: The government could say that it does not plan to comply with the penalties in the act since it is not bound. The purpose of this or similar legislation is to bind the government within Canada.
Senator Spivak: Legally, then, every treaty does not bind Canada unless something else happens. What about the North American Free Trade Agreement, NAFTA?
Ms. Collins: This is a difference between international legal obligations and what is called ``justiciability,'' which is the ability to have a court render a ruling.
All treaties we sign and ratify become binding international legal obligations. As we all know, many nations are out of line with some of their international legal obligations.
In Canada, the question is, when can we take a legal obligation to court, and the answer is, when it has been implemented in domestic legislation.
The Chairman: If it is not justiciable in Canada, assuming this bill does not pass, and Canada does not meet its Kyoto obligations, can Canada be taken to court elsewhere?
Ms. Collins: That is a complicated question. There are international venues to hold nations to account. As I am sure many of you are aware, the international court system is embryonic. I do not see this obligation fitting under the jurisdiction of the International Criminal Court, for example. Although some people have made an argument for crimes against the environment, that is a tenuous argument. It is more likely that we would tarnish Canada's international reputation. You may see trade consequence in places such as the European Union that are starting to move in that direction. We do not have a well developed international court system.
Senator Spivak: Practically speaking, if this bill is passed, the government may choose never to proclaim it. There is no penalty for that for the government. In other words, the bill can be passed and never proclaimed.
Ms. Collins: Mr. Hurley might want to comment, but my view is there is a fairly firm constitutional convention that once a bill has been duly passed by the House of Commons, it must be brought into force and proclaimed.
Senator Spivak: Many bills on the books have not been proclaimed.
Mr. Hurley: The situation I believe is the following: if there is no coming-into-force provision in the bill, it automatically comes into force upon Royal Assent. To delay the coming into force of a bill, the bill must specifically provide that it does not come into force upon Royal Assent but upon an order-in-council or by some other procedure.
As this bill is currently structured, since there is no written instruction that it could be delayed, it comes into force upon Royal Assent.
Senator Spivak: I am confused. There is Royal Assent and proclamation. They are not the same.
Mr. Hurley: Proclamation is when Royal Assent is given but it specifically does not come into effect forthwith. It can be proclaimed in effect at a subsequent date if the legislation provides for that. If the legislation does not provide for any delay, it comes into effect forthwith, without any proclamation.
Senator Tkachuk: While I agree with you that bills moved and adopted by Parliament would obligate the government, the custom has been that money bills are moved only by the government. They are introduced only by the government. They are not introduced, although it is often tried, by members of Parliament. The Speaker then rules on whether the bill is a money bill or not.
You mentioned that this bill would obligate the government to implement Kyoto, which I do not think can be done without money. You may have a different opinion. There may be a wand I do not know about. Can you implement this bill without money?
Mr. Hurley: The Speaker of the House of Commons has made a ruling that the pith and substance of the bill is not to spend money. I can give a great example of a private member's bill which was accepted as a private member's bill, a non-money bill, but, in fact, involved spending money as a consequence. Jean Chrétien, in 1963, I believe, as a young backbencher, proposed that the name of Trans-Canada Air Lines be changed to Air Canada. The pith and substance was symbolic. Of course, once it was adopted, airplanes had to be painted over and stationery had to be placed, so obviously, there were financial consequences, but the pith and substance was not.
Having worked for governments of different stripes, I am not partisan, but I am conscious that the government is the manager of the public service. That issue came out of the Gomery Commission. This bill, while not aiming at the expenditure of monies as such, impinges directly upon management issues. There are 60 days. Normally, if the government drafts its own bill, it assesses what resources are available, whether they need to hire extra people or specialists, and whether they need people to work overtime to meet specific deadlines, then they give themselves the deadline. As managers, they accept the responsibilities. If they do not meet them, they bear the consequences.
With respect to Parliament imposing the deadlines, I am conscious of the fact there was a debate on this issue. Some people feel 60 days is reasonable, but I am not an expert in the area and I have no idea. I know there is a managerial issue: to meet the obligation, they need to prepare a plan within 60 days. To do a serious and meaningful job, it may require the marshalling of great resources. Of course, they can meet the 60-day deadline with a nominal report, saying, ``We did our best, and this is what we can do,'' and I suppose they are within the limits of the law if they do that.
Senator Murray: They can be taken to the courts if they tried that.
Mr. Hurley: If they made the argument that they had done the best they could within the deadlines but were unable to complete their plan, the courts would say, ``You have done your best to meet your obligations,'' and probably the plan could say, ``and we plan to carry on and we will come up with another report.'' From that point of view, there are management issues, which is what I tried to raise.
Senator Tkachuk: Does this bill implement Kyoto in Canada? Does it make it justiciable?
Ms. Collins: Yes, this bill is one of the most justiciable pieces of environmental legislation in Canada, in the sense that one of the widely acknowledged defects in Canadian environmental legislation is that it tends to contain a lot of discretion, and that has been widely written about in the literature. However, this bill is framed in mandatory terms. It will ensure that whatever government is in power during its currency will meet the requirements of Kyoto.
The plan, for example, includes specific aspects that must be dealt with, for example, the financial measures, et cetera.
Senator Tkachuk: Explain that a little further. First, we have the question of the public service that arises out of the management of the public service. I care what the Speaker says, although I may not agree with what the Speaker says. This bill, to me, has huge financial implications. Nonetheless, if it becomes justiciable, does that mean that people can sue if the Kyoto accord is not implemented and the targets are not met?
Ms. Collins: Any Canadian citizen can sue their government for failure to comply with law. They sue on the law, so it is specific in judicial review. They go to this section, this word was not complied with.
What makes this a particularly enforceable act is the use of the word ``shall'' repeatedly. Typically, environmental legislation says, ``The minister may. . .'' This bill says, ``The minister shall,'' so if the minister did not go ahead and compile a climate change plan that incorporated the factors set out in the legislation, any Canadian citizen could sue on that.
Senator Tkachuk: Any environmental group marshalling the money could sue.
Ms. Collins: However, I can tell you from my experience, and I have consulted extensively in the public interest environmental field, that there is not an interest among public interest environmental non-governmental organizations, E-NGOs, right now to fight with any government that makes an effort. In the Species at Risk Act, for example, the current government is almost a year behind in its preparation of recovery plans. They are in violation of the act, and it would be a slam dunk in terms of litigation that is clear.
However, there has been a perception among the community that the government is trying, so there is no litigation.
As you have heard from the Pembina Institute, they are interested in solving the problem, as opposed to spending money in court.
I take the point of concern regarding timelines. However, I find it difficult to believe anyone will sue on day 61 if the government is engaged in a meaningful process.
Senator Tkachuk: Are you testifying as a constitutional expert on this bill, or as a representative or a past representative of environmental groups? It seems to me that we are becoming a little bit hazy here.
Ms. Collins: You are welcome to partake of any area of my expertise. That is not a constitutional question.
Senator Tkachuk: I thought I would ask so it is clear here.
Ms. Collins: I am letting you know within the E-NGO community what the mood has been.
Senator Tkachuk: My view would be that if the targets are not met, they would sue.
Ms. Collins: Right.
The Chairman: Is it the case that being sued by a Canadian would be for failure to bring in a plan?
Ms. Collins: I am saying you sue on the piece of legislation. You sue on the proposed section 5: There is a failure. You sue on the failure to bring in regulations. There is nothing in the bill that says, ``if our ambient concentrations are higher than . . ., these are the consequences.'' In a sense, the bill is more concerned about process.
Senator Tkachuk: Who will be responsible when an election is called? Suppose there is a lawsuit and it is billions of dollars, who is responsible?
Ms. Collins: Let us clarify. There are different kinds of lawsuits: suits for damages and applications for judicial review. They typically do not receive damages awards in applications for judicial review. It is not that the Sierra Club of Canada would win a million dollars from the government; the government will be asked only to comply with the law.
Senator Tkachuk: Let us say the government does everything the law says and everybody agrees, but the targets are not met. There are costs to not meeting these targets.
Ms. Collins: If the government had done everything the law says, there is no suit.
Senator Tkachuk: In the end, nothing happens and the targets are still not met: Who is responsible?
Ms. Collins: The government is responsible for complying with the act, which requires the government to enact plans and regulations to meet the targets.
Senator Mitchell: Senator Carney and I were asking each other this question. What exactly does ``justiciable'' mean? It seems to me that, given the Kyoto Protocol, under which we have an international obligation, the government could proceed with Kyoto without a piece of legislation necessarily initiating it. All a piece of legislation does is make the obligation justiciable, which means someone in Canada can hold them accountable rather than somebody in an international court. Justiciable has a more refined definition.
Ms. Collins: Yes, it is open to the government to enact voluntary measures. The government could fund research and development and achieve Kyoto. The government, however, would not be in compliance with Kyoto unless it implemented some legislation. We undertook to do that.
Senator Mitchell: My next question is at the heart of Senator Murray's question: Can a government be bound by a decision of members of Parliament? It seems to me that governments are bound by the decision of members of Parliament all the time. Governments are not necessarily bound by decisions of the current members of Parliament that are there while governing. Legislation goes back decades with governments before. All kinds of legislation binds governments to decisions made by previous parliaments, MPs and backbenchers.
This is not all that novel in a sense that if we are bound by previous decisions of previous parliaments, why would it be different to be bound by current decisions of a current parliament? It is not different.
Ms. Collins: It is not different. Legally, it is indistinguishable. Government is bound by law whether it is passed by a previous government or a private member's bill. If the government does not like a law, the remedy is to win a majority and repeal it.
Senator Mitchell: All kinds of laws are on the books that the current government does not like. The government is forced to implement that legislation because it does not have a majority to overturn it. The only difference with all that legislation that it does not like is that this government does not have the majority to defeat it. There is really no difference.
Senator Angus said it exceptionally, having a legal background, and that this is what the rule of law is all about. I argue he does not have a modest background: He has a deep and sustained background and is probably one of the best lawyers that has sat in this Senate. It is a question of rule of law. If previous parliaments can bind a current parliament, then a current parliament should be able to bind a current parliament.
Ms. Collins: These are different instantiations of the principle of parliamentary supremacy. It is only different manifestations.
Mr. Hurley: I have heard the work ``responsibility'' used around the table and it is clear to me that two different meanings occur. One is legal responsibility and whether the government is the author of the bill, if Parliament passes it. Legally the government is responsible for the terms of bill.
The other is fundamental to our system of responsible parliamentary government. I agree with you that the government might not have been in accord with many past laws, but it does not have political responsibility for them because they are passed by past Parliaments.
The assumption in our system on major issues of public policy to date is: Does the government have overall responsibility for the legislative output of the session? The normal assumption, the convention to date in Canada, is that the government, when an election is called, must defend the legislative record.
What we are doing in this particular case has never happened before. Legally the bill can go through Parliament, but I ask the question, are we muddying the principle of responsible government? Would it have been preferable in the House of Commons to put the bill forward as a motion of no confidence? This is a fundamental issue of public policy at the present time and we will end up in a peculiar situation if legally, the government is responsible for implementation but politically, it says, in a subsequent election, we did not want the bill and we refuse any responsibility politically for it.
Senator Mitchell: I would argue two things. One, they could have declared a vote of non-confidence, although that raises a question about their prescribed, now fixed, election date. They certainly could have called a vote of non- confidence. It is their prerogative.
Second, the fact is, the Canadian people are capable of understanding complex issues. It is likely they will understand because many people will tell them that this government did not support Kyoto and the only reason it was done and done right was because parties campaigning on the other side of this issue forced them to do it. It may make the debate slightly more complex, but Canadians will understand that debate.
Mr. Hurley: In which case, they will make a distinction between legal responsibility for what has been adopted by Parliament, and political responsibility in a system of responsible government.
Senator Mitchell: I think they will have a clear choice and know exactly how they are voting if this is the ballot question. Is that not the case?
Senator Carney: I am not a lawyer. I do not deal in ``what ifs,'' but I am a legislator with 25 years of experience as an MP, a member of cabinet and a member of the Senate. It seems you are telling us that Bill C-288 is a train wreck that cannot be stopped in its tracks. Nothing in my experience in Parliament indicates that could be the case. Anything environmental is a shared jurisdiction, the Supreme Court says, with the provinces and therefore, there is some wiggle room in terms of the shared jurisdiction of the provinces.
Mr. Hurley, is this a legislative train wreck that cannot be stopped in its tracks?
Mr. Hurley: I am not certain it is a train wreck, but if senators felt that one is playing around with management issues at the same time as dealing with a legal framework — the management of the public service — that there may be some leeway to allow the government to remain in full control of the management and the marshalling of its resources to meet its obligations under the act.
Second, in terms of political responsibility for the act, there are devices for delayed coming into effect that allow those in favour of the bill to be on record clearly as stating what they are committed to and if the government does not wish to assume political responsibility for it — to delay its coming into force perhaps until the next election —
Senator Carney: That is the question. What are the tools for delaying? I know they can re-profile and do all sorts of things and on the management and financial side. What, specifically, can the government do to delay this coming into force — not bring it to Royal Assent?
Mr. Hurley: If the Senate looked at the issue of implementation and examined whether elements of flexibility could be added for a coming-into-force clause, the Senate could seek to navigate these waters and determine how the bill should be handled. It might require concurrence by the House of Commons afterwards.
If the Senate passed the bill unamended as it is, it then goes into the bundle. When next the government house leader in the House of Commons decides a bundle of bills should go forward for Royal Assent, according to constitutional convention, it should receive Royal Assent.
Senator Carney: We have muddied the waters further by introducing the concept of navigating waters, along with my legislative train wreck. Now we have a bundle of legislation.
Being the advisor to the government of Vanuatu must be a piece of cake compared to being an advisor to this Senate committee. If the government felt that it cannot assume the financial implications of Kyoto, which is the government's executive power, what are the remedies? Give us the specific tools.
When you suggest that the Liberal-dominated Senate may want to navigate changes to this bill for the House of Commons, I think you may assume the pilot at the wheel may want to follow that course. I do not think the Liberal senators — and this is a hypothesis — want to do that.
I am asking you technically, as senators, how can we permit the government to make a decision? How can we stop this train wreck? It has red lights all over it, saying that there are financial implications that everyone says we cannot meet. What is the remedy?
Mr. Hurley: We said earlier that if the bill is sanctioned, the government is bound by the bill. As I pointed out, if the timeframe for making the 60-day plan is not totally feasible, in the government's view, it can come out with a pro forma plan to say it has reviewed the situation, it has advanced so far and it will take further action. However, as my colleague said, once the law is approved, the government is bound by the law.
Senator Carney: It is not bound to spend money it does not have.
Ms. Collins: This legislation does not require spending.
Senator Carney: This is a serious question. The committee is looking for advice not so much on the goals, but the implementation of this bill. You say it must receive Royal Assent. You cannot take this legislative stick out of the bundle and say it does not receive Royal Assent. Convention decrees it goes to Royal Assent.
You are not being specific enough by saying the government can say that it cannot meet the targets.
Senator Mitchell: They can call it a question of confidence.
Mr. Hurley: If the Senate approves the bill, it does not go back to the House.
Senator Carney: It does not go back to the House of Commons.
Mr. Hurley: It only goes back if you propose amendments.
Senator Mitchell: They could have had a non-confidence vote.
Senator Carney: They could have. They did not. It does not go back to the House of Commons if it passed; therefore, there is no vote of confidence opportunity. My question is, what is the legislative remedy for delaying the implementation of this bill?
Mr. Hurley: As I have suggested, there is a range of possibilities. Unless one adopts a coming-into-effect provision, that it provides for delay —
Senator Carney: Would that require an amendment?
Mr. Hurley: Yes.
Senator Carney: You are saying that one remedy is to have an amendment to impose or add a coming-into-effect clause and send that back to the House of Commons. Is that correct? You suggest that remedy could be followed. Then it is debated by the House of Commons and comes back to the Senate, which will take us to an election.
Senator Mitchell: Senator Carney is correct that this bill is past the point of being a confidence vote. However, they can bring in a bill the day after this one is proclaimed to repeal it and make that bill a confidence vote. They can always call a confidence vote. They can bring in an act to repeal it.
The Chairman: We are debating. We are here to ask questions of the witnesses.
Senator Angus: Following from the professor's comment, and Senator Carney's and Senator Mitchell's interventions, if we proposed an amendment and sent it back, saying this bill shall only come into force under these following decisions, and that is put to a vote in the House of Commons, it could be rendered as a confidence vote, could it not? We have not completely sold out that possibility.
The Chairman: We have an answer from Mr. Hurley that, so far, that is the only ``remedy'' he proposes. Do I have that right?
Senator Angus: He has others.
Senator Carney: That is an amendment. You have clarified the point I am trying to make. That is the remedy you see before us, which is to amend the bill and send it back to the House of Commons, to provide either that the amendment be passed or that it is a confidence vote.
Mr. Hurley: That is the only remedy to avoid immediate coming into force upon Royal Assent.
The Chairman: Senator Milne, the convention would be that I would go to members first, but in the order of the list, Senator Murray is first. Would you defer to Senator Murray?
Senator Milne: Yes, for the second time.
Senator Murray: I want to suggest, Professor Collins, that no realistic reading of the provisions of this bill can escape the fact that if this bill passes and the government is to ``obey the law,'' there is no way they can do that without spending a lot of money. We only have to look at the bill.
I think the answer to a question that Senator Carney posed is that if they do not do spend money, one can envision a situation in which they are taken to court; and a court will say to the government, you must bring in a money bill, attach a Royal Recommendation to it and spend what it takes to comply with this act.
Let us talk about justiciability for a moment. The question whether a government is trying its best is surely a matter of political judgment for people in Parliament — and, ultimately, for the electors — to decide. The question that I will put to you, and ultimately to my colleagues is, do we want to invite the courts to decide the question: Is the government doing its best?
All kinds of other provisions are in this bill where it will become a matter of opinion whether, for example, the government has brought in ``an equitable distribution of greenhouse gas emission reduction levels among the sectors of the economy that contribute to greenhouse gas emissions.''
What is an equitable distribution? That should be a matter, I think, of political judgment.
What is a just transition for workers affected by greenhouse gas emission reductions, and so forth? Of course, the government is required also to bring in spending, fiscal measures or incentives, and on and on and on.
I accept what you say, of course, regarding justiciability. That is my main concern. For all the talk from time to time about activist judges and so on, we are inviting the judges right into the parlour to make judgments and decisions that properly belong to parliamentarians and to the electorate.
Ms. Collins: First, regarding spending, we have already had a ruling that the pith and substance of the proposed act is not spending. As I read this bill, it is possible for government to comply with this proposed act simply by regulating others. In other words, if the government is not the major emitter, the major emitters are others. Therefore it is open to the government to comply with this act by simply regulating dischargers. It is also open to the government to say, we do not think that is good economics, so we will voluntarily spend in the following ways. However, that is in the discretion of the government. I disagree with your opening premise that this bill is a spending bill.
The second proposition that a court could force issuing an award to the government to promulgate a spending law, the courts do not have the power to issue an order requiring government to legislate. Courts can strike down legislation. They can say to Parliament, ``unless you read in the following we will strike the legislation,'' but they cannot issue an order to Parliament to enact and legislate.
Senator Murray: Where does that leave justiciability of this proposed act, Ms. Collins?
Ms. Collins: The justiciability is that there are specific requirements, for example, the government shall compile a climate change plan within 60 days. If government does not do that, that can be taken to court.
With respect to your third question, the question of whether government is doing its best, should this be a political question, I certainly understand the complexity and why you pose that question. In fact, courts deal with these kinds of things every day. If you want to talk about broad language such as ``equitable,'' look at section 1 of the Charter. Is this limitation a reasonable limit ``in a free and democratic society''? The courts deal every day with difficult political questions about exactly that. Section 1 is a balancing question. Has the government done its best to respect the right while legislating in the way that it needs to, to protect us from hate speech, let us say.
I have a lot of faith in our courts. They have done a good job on many complex issues. They will be able to deal with this provision. It is always difficult in environmental cases. The science will be ferociously difficult. Hopefully all parties would want to avoid litigation, but certainly these kinds of questions are appropriate for the courts.
The Chairman: Mr. Hurley, do you want to comment on that question before I go back to Senator Murray?
Mr. Hurley: No, I think the answer provided is adequate.
I would simply say that if spending is an indirect cause of legislation, it is not deemed to be a money bill. My concern was that, for example, having often been caught in the line of fire, when they suddenly face strict deadlines they must marshal enormous resources and, of course, with financial implications. People under the executive category must be paid overtime if they must work late at night, on weekends and whatnot. If government has 40 working days in principle to achieve a certain objective — I do not know if it is possible or not, I have not assessed it — having been involved in this sort of thing in the past, I can see putting together an interdepartmental committee first to study it and determine where to go and what resources are needed. It puts a burden on the government, but the money is there in the general administration. Some money is taken from here, some from there. There are overtime budgets and everything else. Therefore the government does not need to be obliged to spend money. The money can be found by adjusting budgets that have already been approved.
My concern was that having worked with different governments on managing the public service issues and having been associated with the author of one of the papers to the Gomery commission, I am concerned with the fact that the government is the manager of the service. If one is too specific about narrow deadlines without having had input from the government that must execute the work, one enters into the field of management and I am not certain that this entry is totally salutary.
Senator Murray: I will not argue. The bill is specific. It is not true to say that all the government is obliged to do is bring in a plan. The plan must contain specific elements. Even if the proposed act were not justiciable, it would still impose an administrative burden on the government. Making it justiciable, particularly with some of the matters that I think are open to opinion, potentially brings the courts into a political area that I do not think they have ever been in before. I know what you are saying about the Charter and section 1 of the Charter and so on, but this takes them into specific matters.
I think, Professor Collins, that you understate the role of the government in your description of our system, and perhaps this is a bias on the basis of too long an experience around here. However, to hear you tell it, it is as if the government was a passive receptacle to receive and act on the legislative initiatives of Parliament: that the government is really an agent of Parliament. The government, in our system, as Mr. Hurley said, is part of Parliament. When even this bill comes in, it is Her Majesty, by and with the advice and consent of the Senate and House of Commons, enacts as follows.
You have not said anything in your opening statement, and not much more in the question period, about the financial initiative of the Crown. How would you define that? I understand that the Speaker has ruled that this bill is not a money bill, technically speaking, but how do you describe the financial initiative of the Crown? What does it mean? Why does it exist, if not to underpin the accountability of the government to Parliament, and not the other way around?
Ms. Collins: I will go back to your questions, again, in order. First, I want to revisit the last question regarding political questions, to say that there is one significant difference with judicial review of statutes not on constitutional grounds. That is, as you may all be aware, in what is called administrative law, there is deference to specialized decision makers. If the court finds, for example, that an environmental minister made a decision based on a highly scientific or technical question, the court will accord some deference. If the court decides it is a specialized question, the court reviews on a standard of patent unreasonableness. In other words, the climate change plan would be upheld unless the court sees it as patently unreasonable. Then, there is a sliding scale down to questions of law, which would not come up here.
Senator Murray: You yourself quoted the judges' remuneration judgment itself.
Ms. Collins: Yes, that is right, but that was not an administrative law case. That is what I am trying to say.
Senator Murray: They laid down the law to us, did they not, in ways that surprised most Parliamentarians?
Ms. Collins: That concerned constitutional law. That is why I want to make this distinction. If a climate change plan is hauled into court, there will be a measure of deference accorded to the ministry based on specialized expertise.
With respect to this question of the Crown's financial prerogative, again, it goes back to, we are stuck with the Constitution. That is built into the BNA Act, that when it comes to spending there is a Crown prerogative.
In terms of the importance of the government, I do not mean to impugn the importance of government. Government has a central importance in our system. Most of the time we have majority governments and in those situations the government de facto controls Parliament through parliamentary discipline. In fact, most of the time government is absolutely pre-eminent de facto. There is a huge scholarship of concern regarding that, in some ways, there is a lack of checks and balances in the Canadian system.
However, the Supreme Court of Canada has said that under the principle of parliamentary supremacy, the executive must execute and implement the policies that have been enacted by the legislature. Yes, in that sense, government merely implements what is determined by Parliament. That is why no one wants to be in a minority government, and this is why parties work so hard to be in the majority.
Senator Murray: What is the safeguard for the financial prerogative of the Crown?
Ms. Collins: The Constitution.
Senator Murray: There is no safeguard at all. Your suggestion is that, in a minority situation, Parliament can legislate and the government is obliged, as with this bill, to carry it out.
Ms. Collins: That is not for money bills, and that is the point.
Senator Murray: If it should turn out in a few years that the Kyoto Protocol was badly advised, and conceptually and scientifically flawed, and the government moved forward with the implementation of this bill, who would we go looking for? Would it be Pablo Rodriguez, MP, or Senator Grant Mitchell?
Ms. Collins: This is the danger inherent in any act and why we have a democratic system.
Senator Murray: To go back to the distinction that Mr. Hurley made, we could not hold the government politically responsible for this bill.
Ms. Collins: It is highly unlikely that the electorate will hold the Conservative government politically liable for this bill. I agree with that proposition.
Mr. Hurley: I wish to add that we have had a number of minority governments: 1957-58, 1962-1968, 1972-74, 1979- 80, and more. A number of bills in such times have gone contrary to government policy and have been adopted. They have always been relatively minor bills. The one that I cited was a bill to amend the Excise Tax Act with the elimination of excise duty on jewellery. It was assented to November 25, 2005. None of the bills have been fundamental to a major issue of public policy, which normally is resolved through the confrontational political actors in an election.
There is the written Constitution and the conventions of the Constitution. You could say that by practice and convention to date, notwithstanding all the minority governments we have had since 1957, never before has a matter of such central interest to the political discourse in this country come before Parliament and been adopted, notwithstanding the opposition to the government. I am saying only that it is not unconstitutional. Rather, it is against established convention of practice. Other minor bills were passed but nothing of this scale.
If the bill passes and if minority governments are to become more frequent in the future, then political actors might wish to assess where they want the bill to lead in the short and long term, and the precedent that might result.
What goes around comes around. If Parliament were to move, and it can, as it is moving at the present time, then it will establish, in terms of the conventions of the Constitution, a new approach to major political partisan issues that are normally resolved through elections when parties have mandates. Parliament can go ahead and pass the bill. I am signalling that it will establish a new convention in the way that these issues are handled. If minority governments are to become frequent in the future, one should bear in mind the precedent that will be created.
There is no way that it is not feasible to proceed on these lines.
The Chairman: Thank you.
Senator Milne: My question is for clarification. I understand well that if this bill becomes law, the government could be taken to court. You have told us that several times clearly, Ms. Collins, if plans are not implemented. However, if the government comes in with plans to implement this legislation and the regulations, can the government be taken to court if somewhere in the fullness of time, those plans, implementations and regulations turn out to be inadequate?
Ms. Collins: As you know, this proposed act is a stopgap. In other words, it covers only the period from now until 2012. Realistically, by the time we measure ambient concentrations of carbon, this act will have run its course. Again, the bill is primarily concerned with process, whereby, you shall enact a plan; and you shall enact regulations to achieve the goals set out in those plans. It is not like some American legislation where they actually measure ambient air quality and then financially penalize governments. It is not that type of statute, and is concerned with process instead.
Senator Milne: I do not want to suggest to this government another way to go around this but it seems clear that if we pass this bill and the government comes up with a plan to implement to the best of their ability, they will not be taken to court. If that plan turns out to be inadequate, again, they will not be taken to the court.
Ms. Collins: The plan will be held to the standards in this act. This is why it is a relatively strong piece of proposed legislation compared to others because it sets out factors. Certainly, any litigant that took the government to court on this act would be faced with the deference, which is a common issue in environmental litigation, if there is an assumption that the minister has some specialized expertise.
Senator Milne: Whether the minister has expertise is a completely different matter but certainly, the ministers has experts on tap.
Senator Tkachuk: I have a supplementary question. If the opposition wanted to implement this bill, then why do they not package the bill as a motion of non-confidence, go to the people and have the people decide whether they want the bill?
Ms. Collins: You have to ask your colleagues that question.
Senator Tkachuk: This question is political because this bill is political. None of this is absent from politics.
Ms. Collins: Maybe all bills are political.
Senator Tkachuk: Exactly, and some are more political than others. If the opposition parties want to do that in a minority Parliament, instead of forcing government to do what it does not wish to do because it disagrees with that policy, it would package the bill, throw the government out and have an election.
Ms. Collins: It depends upon whether the priority of the opposition parties was political to force a confidence vote or whether the opposition parties were more interested in acting quickly on climate change.
Senator Tkachuk: When did Kyoto come into force?
Ms. Collins: I am not sure when Canada ratified the Kyoto Protocol.
Senator Tkachuk: Was it 1997?
The Chairman: No, Canada signed it earlier than that.
Ms. Collins: It was signed earlier and ratification was much later, but I do not know the dates.
Senator McCoy: It was in February 2003.
Senator Tkachuk: They could have passed it in February 2003, 2004 or 2005.
Senator McCoy: Canada ratified it.
Mr. Hurley: The preamble to Bill C-288 states:
Canada ratified the Kyoto Protocol in 2002 following a majority vote in Parliament, and the Protocol entered into force in 2005.
Ms. Collins: Thank you, Mr. Hurley.
The Chairman: The short answer is 2005.
Senator Tkachuk: It was 2002.
The Chairman: Are you through with your supplementary question, Senator Tkachuk?
Senator Tkachuk: Yes, that is okay; I am done.
Senator Kenny: This is a remarkable exercise, Mr. Chairman. We have Senator Murray arguing that Parliament does not have primacy over the government, when he is the strongest advocate of that in the whole Senate. The situation is such that the government knew that this bill would make Kyoto justiciable. The government had an opportunity to make this bill a question of confidence, but chose not to do so. The government is most protective of the Royal Prerogative, and speakers regularly side with the government when that question arises. Anyone who has had a private member's bill knows that it is a truly tricky matter and that the speaker sides in favour of the government regularly at such times. If in doubt, and even if it is a close call, the Speaker sides with the government, especially in a majority government, as I have been reminded.
We have asked these constitutional experts political questions, and I do not think it is fair to ask the witnesses political questions. They are here to advise us on the Constitution. What we have is a group of senators who are unhappy and want to correct what the government did in the other place. The government went into it with its eyes open. It could have made the bill a question of confidence. It could —
Senator Carney: Is this a question?
Senator Kenny: I did not interrupt you, Senator Carney. Have the courtesy to wait until the end to see if there is a question mark. Stick with me.
The Chairman: We all made speeches.
Senator Kenny: I will go as long as I can, until I am ruled out of order.
The Chairman: Proceed to the question soon, Senator Kenny.
Senator Kenny: I will proceed to the question.
We are seeing a group of senators who are trying badly to undo what they perceive as an error that their government made in the other place, and it is too late. Their government has already done what it has done, the train is moving on and there is no point in the dogs barking. My question is: Should this hearing not come to an end, Mr. Chairman, because there is nothing further to be discussed?
The Chairman: Is that a question of the witnesses?
Senator Kenny: It is a question of the Chairman, and it is in order.
The Chairman: Are there any further questions of the witnesses?
Senator Spivak: In this matter, where you stand is where you sit. It depends where you come from.
I want to ask about the mandatory nature of this. As you know, and I am sure you are familiar, we have good environmental legislation. Most of it is not implemented. I have a piece of legislation that also says ``shall'' and not ``may.'' Most of our legislation on the environment is at the discretion of the minister. The minister may, but the minister does not. Is that a new twist on anything constitutional? Is the discretion of the minister here impinged upon too much?
Ms. Collins: Again, I am repeating myself, but this goes back to the principle of parliamentary supremacy. Parliament can say ``shall'' and Parliament can say ``may.'' It is up to Parliament to choose either the discretionary route or the mandatory route. It does not affect any kind of constitutional issue to use the binding language.
Senator Spivak: The discretion of the minister is entirely within the legislative process.
Ms. Collins: Right: It flows or does not flow from the wording of the statute.
Senator Spivak: It is a question of opinion how major this policy issue is. What is major and what is minor? One might say that this bill could be the War Measures Act. That is how major a situation we are in. In other words, it does not matter. The discretion of the minister is completely under Parliament's purview.
Ms. Collins: Correct: It is determined by the wording of the statute.
The Chairman: Now I will ask a constitutional question. I have been informed that ``shall'' means more than one thing, depending on the context in which it appears. It is not necessarily a mandatory meaning. As it is read in constitutional law, there is another possible meaning of ``shall'' that is not mandatory. Is that so?
Senator Kenny: I thought we were doing only political stuff here, chair.
The Chairman: No, this is constitutional stuff. Have you heard any such opinion?
Ms. Collins: No, I have not. If you are talking about Charter interpretations, that body of law is separate. As I was saying, this act would be reviewed on administrative law standards and, in administrative law, there is no ambiguity about the difference between ``may'' and ``shall.'' ``May'' is virtually unreviewable. There have been many cases in which litigants make a strong case that the minister ``should have, for the following compelling policy reasons.'' It does not matter. ``May'' is basically unreviewable. ``Shall'' is clear. Wherever there is a ``shall'' obligation, the government must comply. Again, as to content, there would be deference.
The Chairman: Do you have a constitutional question, Senator McCoy?
Senator McCoy: This question relates to the interpretation of the Kyoto Protocol. Does that qualify, Mr. Chairman?
The Chairman: I think it does, with these experts.
Senator McCoy: As I understand it, Canada is obligated to meet its international treaties. For example, if Canada does not even pass enabling legislation, let alone reduce its greenhouse gas emissions, its CO2 equivalence, according to what it said it would do, I was not clear on the penalty. It seems to me from the protocol that there is a penalty, and I would like you to clarify this for me, please. It seems to me that one penalty could be more severe than others in terms of repercussion, and that is the ability to participate in emissions trading in international settings. Is that your understanding as well?
Ms. Collins: Thank you for clarifying that. That is right. I was asked whether Canada could be taken to court internationally, and my answer was that we do not really have an international court system. As I mentioned, there could be international trade implications, which could range from sanctions from places such as the European Union to being excluded from carbon trading regimes internationally, which could be a significant financial hit.
Senator McCoy: It could severely limit the ability of our multinational and national companies to meet the reductions in greenhouse gas, GHG, which everybody hopes they can and will meet.
Ms. Collins: A widespread presumption on the part of the developed nations is that one way they will meet the targets is by funding environmentally friendly development in the developing world. Because of the way the global economy works, it is much cheaper to fund a green project in Nepal than it is to meet all our emissions targets domestically. Yes, if we are excluded from carbon trading, it could make the pricetag go way up.
Senator Mitchell: I want to pursue Professor Hurley's observation that something of this consequence has never happened before in a minority government.
We have seen the emergence of the democratic reform initiative, back with — and I probably would give them credit for this — the Reform Party itself, which became the Canadian Alliance, which is today's Conservative Party. It started with this idea that we needed to empower, although I do not like that word, the member of Parliament. One initiative for empowering the member of Parliament was allowing them to vote on bills. I do not know when that was brought in. One of the house leaders in Alberta negotiated that. In 1993 or 1994, we brought it in, and we could actually vote. I remember how intense it was to allow members of Parliament to vote for a backbenchers' bill. They have been accorded that power, and there was tremendous support for that amongst the Reform Party, the Canadian Alliance and the Conservatives to give them power. Now all of a sudden, when they exercise that power, it becomes a problem.
Having said that, if they are not allowed to exercise their power on big things — unprecedented, in your analysis — then that raises two questions. One, what small things would they be allowed to vote on, and two, how would we distinguish small from big?
The fact of the matter is that they have been given the power because there was a tremendous —
Senator Tkachuk: Mr. Chairman, I do not have to listen to this. He should ask a question or else —
Senator Mitchell: You do have to listen to this until the chairman tells me otherwise.
I am at my question. Would the answer to that then be that we simply withdraw from members of Parliament the power to vote on their own legislation?
Mr. Hurley: I think that is a good observation. I remember 25 or 30 years ago, the policy was that they talked out backbenchers' bills. Even if they found public opinion was strongly in support but for a variety of reasons the government of the day did not wish to proceed, they talked out the bill. We have reformed procedures in the House of Commons so that backbench bills or private members' bills do come up for a vote.
The Chairman: For those watching, ``talked out'' means the bill will never come to a decision.
Mr. Hurley: It meant there was a specified time allocation for debate and vote and, if they continued talking until the last moment, there was no opportunity for a vote. That used to be a technique.
You are right that in terms of empowering Parliament and empowering private members, procedure has changed.
I raise the issue because I have been concerned with management issues in the Government of Canada in the broader terms of governance. There has been no problem with relatively minor bills.
I gave you the example of abolishing the excise tax on jewellery. It was not something that divided Canadians — where people were coming to fisticuffs. It was not a matter of great moment.
When we come to things that are central to the political debate, my point is not that it cannot go ahead. Rather, are we muddying the whole basis of responsible parliamentary government, as we have known it, in the past? If it happens on one bill, can it happen on others? Where do we end up when we add up the totality?
The first statement we were asked to comment upon showed a great deal of confusion about the principles of our system of government. A central tenet was that it was based on the separation of powers, checks and balances, but it is not. If we start deciding major policy issues this way rather than by elections, are we changing the political system? I asked a question not in terms of partisan interests in this as a bill, but rather in terms of the operation of our political system as it evolved up to the present. There has never been, in a minority parliament, a major critical issue of public opinion that has been decided by a law, by opposition against the government's will. Let us go back to Mr. Diefenbaker and the Bomarc B missiles. Maybe it would have been a non-money bill for the opposition parties to have said: ``The government is obliged to honour its commitment to put nuclear warheads on Bomarc B missiles.'' That could have been debated and perhaps the government could have been obliged to do it. Then, what happens when the election of the minority government finally takes place? Where does this issue play?
Instead, the opposition put this issue as a matter of confidence and the government fell. The opposition leader put forward his policy that he would accept them in the interim for five years and then negotiate out. That was how normally, in a minority situation, we handled something that was deemed to be central to the key political issues being debated.
Are we changing the way our parliamentary system responsible government has traditionally functioned? If we are, at least we should be up front about acknowledging what we are doing so we do not end up with a system where every time there is a minority government, which could be frequent in the future, where this situation happens, people say, maybe we should adopt the Swiss collegial system, the American presidential system or some other system but the basic conventions of our Constitution, which assumes the government has overall responsible for the major legislative issues during a session, no longer holds true.
Senator Mitchell: Very good. That started when we gave members of Parliament the power to vote on their backbench legislation. That is in place. I think more of this kind of thing will occur. It seems to me the only way you can stop that, now that the horse is out of the barn, would be to take away the vote from members of Parliament.
The Chairman: I gather, Senator Mitchell, that was the end of your point.
Senator Mitchell: Was that not a question? No, it is a point.
The Chairman: Was it a question?
Senator Spivak: It is sort of a supplementary question.
Senator Kenny: Mr. Hurley, surely you are premature with this judgment to suggest that our parliamentary system is changing with one bill. Surely you agree that the government had an opportunity to crystallize the situation by saying it was a question of confidence, and this was central to their campaign. They chose not to for their own political reasons. We can all speculate as to what the reasons were.
Another government, faced with a similar situation, could well say, this is central to our mandate. We will go to the people and resolve the matter by a vote. Surely you are premature when you suggest this bill is a fundamental change in how we are governed?
Mr. Hurley: I do not suggest it is a fundamental change in the way we are governed. I am saying it creates a precedent. The precedents before were things such as abolishing an excise tax on jewellery. This issue is not central to political debate.
Senator Kenny: We understood and accept that. You are making a judgment about the order of magnitude of this bill. You suggest this bill is of a greater order of magnitude than all the previous private members bills that have gone ahead. Surely that is a judgment matter that has any number of answers.
Mr. Hurley: The point I am making is, yes, it is of a far greater magnitude than other bills. We know this bill is central to political debate in Canada at the present time. It establishes a new precedent. The precedent has already been established that backbenchers' bills the government does not like can proceed. This bill is of a new magnitude. I do not suggest this will bring down our system. If it is repeated over time, on a number of key policy issues, normally decided during an election campaign, it will run the risk of clouding our traditional operation of responsible parliamentary government, at which time people may need to ask themselves, should we redefine the conventions of our Constitution?
Senator Kenny: Have you ever seen a private member's bill the government liked?
Mr. Hurley: Mr. Chrétien's was one bill. I think they liked it.
Senator Kenny: That would be the exception. You agree most private members' bills are not the government's favourite?
Mr. Hurley: Yes and that is why they were talked out. As Senator Mitchell rightly points out, we have changed the procedure, and consequences come from that. The consequences have been relatively minor in terms of the broad policies of the government at the present time. This bill breaks new ground. I think we have to be frank. It can be done. It is being proposed. We should not go in with our eyes closed and say it will alter the dynamics of the way the conventions of our Constitution have operated with respect to the government being responsible for the legislative output of a session.
Senator Kenny: If you are right that it is new ground, where was the new ground broken, in the Senate or the House of Commons?
Mr. Hurley: It was in the Commons.
Senator Kenny: Has the elected body decided to break new ground?
Mr. Hurley: Yes.
Senator Spivak: I doubt this is something that will change or muddy the responsibility for two reasons. First, the entire three parties of the opposition, who rarely agree, all combined. Second, all three parties did not want an election. That is a kind of circumstance where the stars cross. That does not happen often. I have a feeling that not only did the government not want an election because it did not want to go to an election on an environmental issue but that it wanted to go on a crime issue or something else.
What is your view on that? Has this situation ever happened before where three parties who normally do not agree, agreed? Second, has it ever happened where all three did not want an election?
Mr. Hurley: I think you have made a political observation, and I listen with great interest to your observation.
Senator Murray: Mr. Chairman, this is not one bill. The House of Commons has passed others, and we now have, somewhere in the mix, the bill to implement the Kelowna accord. I forget what the dollar amount is. It is about $8 billion or $10 billion. That bill is before us.
I think Senator Mitchell is right. The horse has left the barn. Now that the House of Commons has changed the rules, private members are bringing more bills to a vote. There will be more private members' bills of greater importance. How do we safeguard or build new safeguards for the Crown prerogative, the financial initiative of the Crown? Is there any way we can do that because that is what underpins accountability, cabinet unity and our system of responsible government.
In New Zealand, where they have a system identical to ours, except that they are unicameral, the government can veto any bill that, in the judgment of the government, will have a major effect on, or would stress, their finances. The government issues a certificate, and that is the end of the bill. The Speaker may not put that bill to a vote.
Mr. Hurley: When I reviewed the theoretical options before the government, I cited Geoffrey Marshall, the British authority on constitutional conventions. He raised the point that Royal Assent is provided on instrument of advice. He asked whether, theoretically, if a private member's bill that the government did not wish to see enacted were adopted by Parliament, could the government refuse to provide Royal Assent. He did not answer the question.
I said earlier that in our system it is not checks and balances, that in principle the government does not have a veto. Senator Murray said that New Zealand has provided a veto for the government. Coming back to Senator Mitchell's earlier comments about the way our system is evolving, private member's bills did not come to a vote at one point. They will come increasingly to a vote. Bills of this magnitude will come increasingly to a vote. Minority governments, according to some observers of the political scene in Canada, may become more frequent.
It might be that the government should canvass the possibility. Under our system as it presently operates, according to current conventions, if the government, by instrument of advice, ordered the Governor General not to give Royal Assent to a bill approved by Parliament, that would put the Governor General in an untenable position. That would be the only way of equalling —
The Chairman: — well, short of us. However, I want to come at the question in another way. This place rarely defies the will of the House of Commons, but it sometimes does. Is this one case in which the Senate ought to stand against the expressed voted will of the House of Commons?
Mr. Hurley: Mr. Chairman, I believe that is a question of political judgment. I have set out, to the best of my ability, the parameters as I see this impinging upon the operation of responsible parliamentary government in Canada. When I started canvassing theoretical options, I said that I do not think they should be contemplated. Technical possibilities could be envisaged. Similarly, whether the Senate should defy the will of the House of Commons expressed by that House is a matter for the Senate to decide in the use of its own political judgment.
The Chairman: Does the Constitution not refer, and did the constitutional debates not refer, to the fact that the house of sober second thought, as it is called, would not put itself against the expressed will of the elected House? Is that not part of the background behind the Constitution and the existence of the Senate?
Mr. Hurley: The Senate was supposed to be the house of sober second thought. I remember, for example, an issue of high political visibility in Canada in 1960 or 1961. Mr. Coyne, the Governor of the Bank of Canada, enunciated a monetary policy that the government did not like, but the government had not given him any instruction not to proceed. Finally, he was given instructions and the government decided, by a bill, to render the position of the Governor of the Bank of Canada vacant. The bill went through the House of Commons quickly, and Mr. Coyne was not given an opportunity to defend himself. It ended up in the Senate. The Senate sent it to a committee, and, if I remember correctly, Mr. Coyne spent three long days defending his reputation, almost to the point where he was wearing out the sympathy of the senators.
At the end of the hearings, the Senate decided not to report the bill back to the House, and so it died.
Senator Murray: He resigned and saved them the trouble.
Mr. Hurley: Yes, he resigned.
That is an example of the Senate playing a role that defied the will of the House of Commons.
The Chairman: Thank you Professor Collins and Mr. Hurley. You have been most informative and useful to our deliberations.
The committee adjourned.