Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence, December 6, 2006 (Afternoon meeting)
OTTAWA, Wednesday, December 6, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, to amend the Canada Elections Act, met this day at 5 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call to order this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. This is our first meeting in relation to Bill C-16, an act to amend the Canada Elections Act. The purpose of this bill is quite straightforward. It amends the Canada Elections Act to bring in fixed election dates at the federal level in Canada. It provides that, subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following polling day for the last general election, with the first general election after the bill comes into force to be held on Monday, October 19, 2009.
To begin our consideration of this bill, we are pleased to have before us this evening the Honourable Robert Douglas Nicholson, the Leader of the Government in the House of Commons and the Minister for Democratic Reform. Mr. Nicholson is from the province of Ontario and represents the riding of Niagara Falls. He is joined today by Mr. Dan McDougall, Director of Operations, Legislation and House Planning, and Mr. Douglas Wolfe, Senior Policy Adviser, Legislation and House Planning, both from the Privy Council office, and by Mr. Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice.
Minister, we thank you very much for your cooperation in agreeing to appear before us today with such short notice.
Please proceed with your presentation.
Hon. Robert Nicholson, P.C., M.P., Leader of the Government in the House of Commons and Minister for Democratic Reform: I am pleased to be here as you begin your discussions on Bill C-16, which provides for fixed dates for general elections.
Fixed dates for general elections was an electoral commitment of the government. Moreover, I am pleased to note that after being thoroughly debated in the House of Commons and thoroughly scrutinized by the Standing Committee on Procedure and House Affairs, Bill C-16 was passed without amendment and with all-party support.
I will begin with a description of the current process for calling general elections and discuss some of the difficulties that we see associated with it. I will then present some specifics of the bill and some of the reasons I believe it will be beneficial. I will also talk about why the government chose to draft the bill in the way it did, and why the route we took was both necessary and effective. Finally, I will be glad to answer any questions.
As you know, today it is the prerogative of a prime minister whose government has not lost the confidence of the House of Commons to select what he or she regards as a propitious time for on election to renew the government's mandate. The Prime Minister requests the dissolution of the House of Commons from the Governor General. If the Governor General agrees, he or she proclaims the date of the election. This is a situation in which the Prime Minister is able to choose the date of the general election, not necessarily based on what is in the best interests of the country, but based on what is in the best interests of his or her party. Bill C-16 will address this problem and will, I think, produce a number of other benefits.
As set out in the government's platform, this bill is modeled after existing provincial fixed-date elections legislation. It is similar to the approach taken in British Columbia, Ontario, and Newfoundland and Labrador. British Columbia held its first fixed-date election on May 17, 2005, and Ontario and Newfoundland and Labrador will soon have their first fixed-date elections on October 4, 2007 and October 9, 2007 respectively.
During House committee hearings, the Deputy Chief Electoral Office for British Columbia indicated how well the B.C. legislation is working and that it actually saved the B.C. taxpayers a significant amount of money in the last election.
The government's bill provides that the date for the next general election will be Monday, October 19, 2009. Of course, that will be the date only if the government is able to retain the confidence of the House until then. The bill does not affect the powers of the Governor General to call an election sooner if a government loses the confidence of the House.
For example, if the government were to be defeated tomorrow, a general election would be held according to the normal practice. However, the subsequent election would be scheduled for the third Monday in October in the fourth calendar year after the next election. That is the normal model that would be established by this bill. General elections will occur on the third Monday of October in the fourth calendar year following the previous general election.
We chose the third Monday of October because it is a date that is likely to maximize voter turnout and will be least likely to conflict with cultural or religious holidays or elections in other jurisdictions. That raises an additional feature of the bill to which I want to draw your attention: it provides for an alternate election date in the event of a conflict with a date of religious or cultural significance or an election in another jurisdiction.
In the current system, the date of the general election is chosen by the government, so it is rare that a polling date is chosen that comes into conflict with a date of cultural or religious significance.
However, with the introduction of legislation providing for fixed dates, there is some possibility that in the future the stipulated dates will occasionally be the same day as a cultural or religious day of significance.
The Ontario fixed-date elections provide that if there is a conflict with a day of cultural or religious significance, the Chief Electoral Officer may recommend an alternate polling day to the Lieutenant Governor-in-Council up to seven days following the day that would otherwise be polling day.
Using a variation of the Ontario legislation providing for fixed-date elections, our bill empowers the Chief Electoral Officer to recommend an alternate polling date to the Governor-in-Council, should he or she find that the polling day is not suitable for that purpose. The alternate day would be either the Tuesday or the Monday following the Monday that would otherwise be polling day. Allowing alternate polling days to be held on the following Tuesday or Monday is consistent with the current practice of holding elections on a Monday or Tuesday.
As to the benefits of this bill, fixed-date elections will provide numerous benefits to our political system. With fixed- date elections, the timing of general elections will be known to all, which will provide for greater fairness. Instead of the governing party having the advantage of determining when the next election will take place and being the single party that may know for up to several months when it will occur, all parties will be on an equal footing.
Another key advantage of fixed dates for general elections is that this measure will provide transparency as to when the general elections will be held, rather than decisions about election dates being made behind closed doors. General election dates will be public knowledge.
Fixed dates for elections will also allow for improved governance. For example, fixed dates for general elections will allow for better parliamentary planning. Members of parliamentary committees will be able to set out their agendas well in advance, which will make the work of committees and Parliament as a whole more efficient.
Yet another reason for adopting fixed-date elections is that the measure will likely improve voter turnout because the elections will be held in October, except when a government loses the confidence of the House. The weather then is generally favourable in most parts of the country, and fewer people are transient. For example, most students will not be in transition from home to school in October and will therefore be able to vote. Moreover, seniors will not be deterred from voting in October, whereas they might possibly be deterred in the winter months.
Honourable senators, I should like to speak on an issue raised during Senator Joyal's debate on Bill C-16 on Tuesday, November 21. Senator Joyal argued that, should Bill C-16 be enacted, we would be changing section 50 of the Constitution and section 4 of the Canadian Charter of Rights and Freedoms. He indicated that this is so because `` . . . we would reduce the maximum life of Parliament to four years while both in section 50 of the Constitution and in section 4 of the Canadian Charter of Rights and Freedoms, the maximum life of the House of Commons is five years.''
I want to assure honourable senators that Bill C-16 in no way contravenes section 50 of the Constitution Act or section 4 of the Canadian Charter of Rights and freedoms. Section 50 and section 4 contain provisions that are similar in scope, purpose and effect in relation to the House of Commons. Section 50 provides that the life of a House of Commons is five years and no longer, but expressly preserves the Governor General's power to dissolve the house sooner than that. Section 4 creates a maximum term of five years for the House of Commons and provincial legislative assemblies. These provisions ensure that, barring an emergency, no House of Commons will continue for longer than five years. Their evident purpose is to guarantee that there will be elections of the House at least every five years.
That intent and the constitutional maximum provided by these sections are respected by Bill C-16. Nothing proposed in the bill in any way impairs or contravenes the five-year limit. Quite the opposite: The bill works within the constitutional limit, contemplating that elections be held every four years.
The Constitution does not require that the House continue for as long as five years. As constitutional scholar Peter Hogg notes in his treatise, Constitutional Law of Canada, the five-year period ``is a maximum term, not a fixed term.''
Indeed, section 50 makes it clear that the Governor General retains the ability to dissolve the House at any time sooner than its five-year maximum life. The Constitution does not require, or even create the expectation, that the House of Commons will actually continue for a full five years.
Bill C-16, which contemplates that elections be held every four years, contravenes no constitutional requirement or expectation of a longer term. It expressly preserves the Governor General's powers. The bill makes it clear that nothing in it affects those powers, including the power to dissolve Parliament at the Governor General's discretion.
The Governor General's powers remain those that are held under the Constitution: to dissolve Parliament at any time within the five-year constitutional limit. However, by providing that elections are to be held every four years in October, the bill establishes a statutory expectation that the relevant political and administrative officers will govern themselves accordingly to accomplish this end — working within the rules and conventions of parliamentary and responsible government.
The aim of the bill is to ensure, to the extent possible within the framework of our constitutional system, that the date on which an election will be held may be known in advance, thereby increasing fairness, transparency, predictability, efficiency and forward planning.
In summary, Bill C-16 respects both the purpose and the provisions of section 50 of the Constitution Act, 1867 and section 4 of the Charter. It does not affect the maximum term or life of a Parliament. It does not contravene that maximum.
By providing that, subject to the discretion of the Governor General, elections will be held at four-year intervals within that maximum period, the bill will give rise to a reasonable expectation of regular and certain election dates. That will not only respect the Constitution, but will enhance the quality of our parliamentary democracy. We are committed to making this modest but important change to improve Canadian democratic institutions and practices.
In conclusion, I would point out that the third week in October is citizenship week in this country, a time when we celebrate what it means to be a Canadian citizen. It is fitting, therefore, that the general elections will be set for the third Monday in October, a most fitting and fundamental expression of our citizenship.
Fixed-date elections will provide for greater fairness, increased transparency, improved policy planning and increased voter turnout. In June of this year Ipsos-Reid released the results of a poll which showed that 78 per cent of Canadians support the government's plan to provide for fixed-date elections.
Moreover, I would stress again that the House of Commons passed this bill, an electoral commitment, with all-party support without a single amendment. I hope that senators will also look favourably upon this important piece of legislation, and I truly hope it receives your support.
The Chairman: Thank you for that overview.
I have a very simple question. In Canada we celebrate Thanksgiving in the month of October; can you tell us what the fixed date is for the Thanksgiving Day break and holiday and whether this bill will conflict with the celebration?
Mr. Nicholson: I do not think so. One of the advantages of the date that we have chosen is that Thanksgiving, as you know, is the second Monday in October, whereas our election date is the third Monday. Inasmuch as there will be advance polls available in the previous week, it seems to me that, for those individuals who for any reason could not be there on the third Monday of October, the opportunity would be there for them to vote at the advance polls. Also, because Thanksgiving is a time when people generally get together, that again will enhance voter turnout. For those reasons I think the third Monday is a good date.
Senator Milne: Minister, welcome to the committee. I apologize for holding you up a little bit at the beginning by being late.
You said that when there is a conflict with a day of religious or cultural significance the ``Chief Elections Officer may recommend an alternate polling day . . . up to seven days following the day . . . ''. I am concerned that seven days may not be enough, because we do have religious festivals and celebrations in this country that are constantly changing every year. I am thinking particularly of Ramadan, the dates of which change every year. I am concerned about that limit of seven days.
Mr. Nicholson: It is a reasonable balance that we try to strike. There is an acknowledgement that, whatever date you pick, you cannot completely exclude the possibility that you will conflict with some group, some religion or some cultural festival. We cannot guarantee that we will always be able to avoid that.
That being said, when I discussed this with our departmental officials one of the first items of business was to ask them to please scour the calendar to pick a date that would least likely conflict with any other cultural or religious festival, at the same time being consistent with our goal to provide a date that works well in a secular society in terms of students coming and going, and keeping an eye on things like the weather and some of the established holidays. We did provide the flexibility that, if there is a problem with the Monday, the Chief Electoral Officer can recommend it go over to the Tuesday. If there is something wrong with the whole week for some reason, the recommendation should come that it would be a week later. We could have given discretion for a month or two months, or something like that, but in terms of planning for the nation and knowing that Thanksgiving is the previous week, we believe the third Monday will work, with a bit of room. This is consistent with provincial legislation as well.
Senator Milne: Minister, there has been some comment that this bill is in violation of the preamble to the Constitution Act, 1867, where the provinces of Canada were three colonies at the time, including Nova Scotia and New Brunswick, united ``. . . with a Constitution similar in principle to that of the United Kingdom.'' Since the United Kingdom has the confidence convention, it is a fundamental part of our Constitution. I am a little concerned about that.
Mr. Nicholson: There is quite a bit in the preamble. I notice that the union would be conducive to the welfare of the provinces that promote the interests of the British Empire. I am aware of that, and I do not think that what we are doing departs from the tenets of British parliamentary democracy or in any way violates the spirit of the Constitution. I cannot see, senator, where it would be that much of a departure. It is perfectly consistent that we can set dates for elections. Perhaps Mr. Newman could comment.
Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice Canada: The preamble, in speaking of a Constitution similar in principle to the United Kingdom, reflects the principles of parliamentary and responsible government. Although the preamble has no enacting force, it can be used to interpret the provisions of the Constitution. I think the minister is correct in saying that there is nothing in the bill that in principle violates parliamentary government. On your specific point about whether the confidence rule remains, it does in fact; it remains entirely intact because it is preserved expressly, insofar as legislation can preserve a constitutional convention, which is an unwritten rule. It is preserved in the opening provision, section 56.1(1), which states that: ``Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General's discretion.'' If confidence is lacking in the government, it is always open to the opposition parties to move a vote of non-confidence, and the legislation takes that into account.
Senator Milne: Why, then, when the Lortie commission in 1992 was looking at all this, did they comment that this type of system in Bill C-16 would not work because the government could always orchestrate its own defeat under such a system. They felt that the proposal for fixed terms presented several major problems. How does this bill address that concern?
Mr. Nicholson: I am not quite sure. Ultimately, if a government were orchestrating its own defeat it would have to be a decision of the House. Again, it would be a situation in which the government, for whatever reason, had lost the confidence of the House. There would have to be non-confidence votes taken by the opposition parties. I cannot see that.
Senator Milne: Yes, but you and I know it can be orchestrated.
Mr. Nicholson: I would expect that any government, in presenting legislation that it hoped would be passed by the House of Commons, would do so believing it to be in the best interests of the country; and that should certainly be its guiding principle. If it was the decision of the opposition parties to defeat the government, the confidence convention as preserved by this bill would apply and, again, it would be within the discretion of the Governor General.
Senator Milne: I will subside.
Senator Cowan: Welcome, Mr. Minister. I spoke in support of this bill when it was introduced in the Senate, but I did express some concerns, a couple of which I would bring to your attention and invite your comment on, if I may.
First, perhaps I could follow up on the point that my colleague Senator Milne introduced, namely, this business of a government orchestrating its own defeat in order to call an election. As I understand it, the special joint committee that studied this issue in 1972 suggested that any legislation that would bring into being a fixed-date election would try to define in some way the concept of ``lack of confidence.'' Did you look at trying to do that in this legislation? If not, why not? Could you just expand on that? Perhaps I could give you the three quick points.
I can easily see how this would work and would add predictability, transparency and openness in a majority government situation, but at least for the moment we seem to be in an age of minority governments.
Mr. Nicholson: I hope that does not last very long, senator.
Senator Cowan: I hope it does not last very long either, but perhaps for different reasons. It is easier for me to see how it could operate within this predictability and promote predictability in a majority situation than in a minority; I think you probably agree with that.
Mr. Nicholson: Yes.
Senator Cowan: The second point is this: when we get fixed-date elections, are we not condemning ourselves to a constant state of election readiness. I think our friends in the U.S. see that, at least in the House of Representatives, where it seems to me that they are constantly campaigning for re-election or raising money for re-election.
Third, is there anything that indicates that a beneficial side effect of bringing in this scheme is an increase in voter turnout and an increase in candidates for minorities in our situation? As I understand it, in British Columbia there was no indication that there were more women candidates who presented themselves for office in a fixed-date election. That is something that all of our parties are committed to doing, but thus far they have not found a way to do it. It may well be that this helps, but I have not found anything that would support that that would happen. I invite your comments on those three points.
Mr. Nicholson: If you do not mind, senator, I will take them in the reverse order. You asked about what are the chances of an increased voter turnout and what this would mean, and you specifically mentioned minorities.
The present system, in which Parliament could last any time up to five years, acts as a discouragement to some people. There are many people who have other considerations in their lives or employment considerations. Not being able to have a fixed date as to when they will be called upon to present themselves to the public is problematic. Many years ago, in the riding of St. Catharines, one individual put his name forward, received the nomination, and the election of 1974 took five years. That was a five-year term. He gave up around 1978. He said, ``I must get on with my life. I cannot put my life on hold.'' He actually declined to be the candidate for my then political party.
In terms of people who want to enter public life, it adds a little more predictability, and it seems to me that over the long run that would be an advantage.
With respect to the increase in voter turnout, interestingly enough, despite predictions to the contrary, one of the highest turnouts we have had in recent times was the election at the end of January of this year. That was for reasons of its own, but overall, for people who are planning trips or for students, having people know will work out.
On your second question, you said we will be in a state of constant election readiness. I do not believe that is what happened in British Columbia. You mentioned the American system. The system of primaries that the Americans have somewhat extends the electioneering period. I would say that there are some advantages to it. You would know that for the Chief Electoral Officer, in trying to come up with polling stations and booths, it is very difficult when you are constantly trying to guess exactly when the election is.
It puts everyone on notice. We have had a couple of elections in the last two decades that were at around the three- and-a-half-year mark. I was part of a government that went within a few weeks of the whole five years back in 1993. That in and of itself put people on increased election footing for a period of time of almost two years, so I am not overly concerned about that.
Your first question was whether we had considered defining the confidence convention. It seems to me that if we tried to define what the confidence convention is and put it on paper, we would then be subject to having that interpreted by the courts. I have no problem with the courts interpreting the legislation of the Parliament of Canada, but it seems to me the confidence convention by its very nature is something that is difficult to define precisely. We would not want to get into an argument that could be tested in court as to whether the confidence convention is in effect or not. We did consider it, but we feel leaving the confidence convention as it is now is a better way to go.
Senator Cowan: I understand why you did not move to put a definition in, and those are all very valid and good arguments about predictability, arguments I agree with in respect to a majority government situation. Like you, I have talked to people, and I know of examples in my own province where candidates have stepped aside because they cannot wait any longer and have to get on with their lives. However, I do not know how, in our current political environment, this will give them any more comfort.
Mr. Nicholson: You are right. In a minority situation, in a sense, all political parties and individuals are in a constant state of election readiness. As I indicated in my opening remarks, if we are defeated on our budget implementation bill next week, everyone recognizes that that is a confidence measure and we could therefore be into an election again, similar to last year, over the Christmas holidays. There is nothing we can do, or should be able to do, about it. As the senator indicated earlier, we have a Constitution similar in principle to that of the United Kingdom, and this is one of the principles of it. Governments must maintain the confidence of the House.
Senator Zimmer: Welcome, Mr. Minister, to you and your colleagues. My questions are in the area of the vote of confidence or the interpretation of a loss of confidence. It is my understanding that the bill ensures that an election could be held before the end of a four-year period in the event that the government clearly does not have the support of the majority of the House of Commons. Would this be determined only through a vote of confidence, or does this bill provide for other means of interpreting a loss of confidence?
Mr. Nicholson: It could be done in several ways, senator. You are quite correct that on what we call opposition days, there could be a motion specifically that the government has lost the confidence of the House. On the other hand, in the example I gave to you of the budget implementation bill that we intend to call on Friday of this week, if at some point that bill is rejected by the House of Commons, that will be a clear indication that the government has lost the confidence of the house and an election will ensue.
Senator Zimmer: Turning to another area of interpretation or definition, it is argued by some opponents of fixed election dates that stability and accountability are inherently in conflict. Give me your thoughts on this notion.
Mr. Nicholson: Fixed election dates provide a certain stability and predictability within a majority government. Senator Cowan pointed out that that does not exist within a minority situation. In terms of accountability, it is an improvement in that it opens up to Canadians the predictability and the certainty of when that election is. The huge amount of power that is in the Prime Minister's prerogative to recommend to the Governor General basically at any time to pull the plug is a power that I believe should be curtailed. This restriction makes it more democratic in the sense that other people are able to plan and to participate in public life. I think it is an improvement over what we have, and I am certain that is why British Columbia, Ontario and Newfoundland have moved in that direction.
Senator Zimmer: On the confidence vote, given that this bill would not affect the powers of the Governor General, including the power to dissolve Parliament at his or her discretion, is there any possibility that under this bill an election could be called before the four years were up in a situation where the government had not been defeated in a confidence vote?
Mr. Nicholson: Any prime minister who attempted that would do so at his or her peril. Once having told Canadians, and put it into writing, that that date will be, in this case, the third Monday, a prime minister who called an election for no reason, after not having lost the confidence, would be into a very difficult constitutional situation that would require perusal by the Governor General. Even if that difficulty was overcome, I am sure the Canadian public would have something to say about it. It is a true restriction of the powers of the Prime Minister, and a good one.
Senator Joyal: Mr. Minister, I have two points to raise with you. The first is on the interpretation of section 50 of the Constitution. You referred to that in your opening remarks. I understand that Bill C-16 changes section 50 by putting in a statutory limit of four years instead of five years for the life of a Parliament. Am I right or wrong on this?
Mr. Nicholson: Senator, you asked if it puts the limit on the length of a Parliament at four years? Yes.
Senator Joyal: Section 50 reads:
Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House . . .
Mr. Nicholson: We know that that has not been the case, except in rare circumstances, since 1867. That is the maximum, and most elections have been called prior to the five-year period.
Senator Joyal: I understand that. The practice in the use of section 50 is essentially that it is within five years. As you stated, Parliaments have lasted two years, others three years, others four and a half years, others three and a half and so forth. However, the essential effect of Bill C-16 would be, in practice, to state that from then on, after Royal Assent, no House of Commons would continue for more than four years.
Mr. Nicholson: That is the essential effect of it.
Senator Joyal: Yes. In other words, it would change the substance of section 50.
Mr. Nicholson: I am not sure about that, senator. It seems to me that the admonishment or the directive of section 50 of the Constitution is that no Parliament can be longer than five years. It seems to me that some future Parliament could amend the legislation and could make it three years or four and a half years, or indeed remove it and make a fixed term of five years. The interpretation of section 50 has been that it provides a maximum number of what Parliament can be, unless there were other circumstances you would be aware of under the apprehension of a war or that sort of thing. That is an exception to this. I think this provides a maximum, but it would be open to some future Parliament to decide to make it four and a half or three years, as is sometimes the case in municipal government, but again we are setting it at four years and that is within the five year maximum set out in section 50.
Senator Joyal: I understand.
Dan McDougall, Director of Operations, Legislation and House Planning, Privy Council Office: In a certain sense, it relates to the previous question as well, relating to accountability and what happens. As the minister indicated in his opening remarks, it creates a reasonable expectation that the Prime Minister will act in a certain way. As has been said, the Prime Minister would then be held accountable to the public if he were to, as has been suggested, engineer his own defeat or do something to contravene the express wishes of Parliament to have the fixed election date. It goes back to the basic question of accountability rather than to a constitutional issue related to the exercise of section 50.
Senator Joyal: That is the prerogative of the Prime Minister. That is the other issue I want to tackle, but the first one is with regard to section 50. The net effect of Bill C-16 is to limit the life of Parliament to four years while in the Constitution it provides that it could go as long as five years. That is essentially the limit. It curtails the 12 more months that we can have over and above four years. That is the net effect of Bill C-16 in relation to section 50; so you change the impact of section 50.
Mr. Newman: I would respectfully disagree, senator. I clearly see your point of view in terms of the opening wording of section 50, which says that every House of Commons shall continue for five years; however, had the government wished to change section 50, it would have been open to the government to do so under section 44 of the Constitution Act, 1982. The Parliament of Canada may amend the Constitution of Canada in relation to the Senate and the House of Commons in areas such as this, so long as it is not an amendment going to six years, if we remain within the constitutional maximum.
However, the intention was not to do that. There is no provision in Bill C-16 that says every House of Commons shall continue for four years. In other words, there was no attempt to amend section 50 because it was not thought necessary to open the text of the Constitution Act, 1867 to achieve the ends of Bill C-16. This bill does not address itself to the life of the House of Commons. All it does is simply create, as the minister said, an expectation that political actors and administrative officials will govern themselves in accordance with a rule, which has been stated as emphatically as any constitutional convention, that there will be elections every four years.
That is about as far as one can go within section 50 without changing it, but there is no change to section 50. I would argue that the meaning of section 50, if it is taken in terms of its full context, is very similar to section 4 of the Constitution Act, 1982, which you invoked as well; that is, that the purpose of section 50 and section 4 is to ensure that as a rule the House of Commons will not continue beyond five years. That is the purpose. It is to protect against long Parliaments. That purpose is respected by an act that says we will have elections every four years. If one reads section 50 all the way through — ``Every House of Commons shall continue for five years, subject to being sooner dissolved by the Governor General and no longer'' — that is the full import of section 50. I would argue that that is also the way section 50 was interpreted in the old section 91(1), which you will recall very well. That was the earlier power to amend the Constitution that the United Kingdom Parliament gave to the Parliament of Canada in 1949, and it said that Parliament had the power to amend the Constitution from time to time except as regards the rule that no House of Commons shall continue for more than five years. That is the way section 50 was being interpreted.
I do believe that that is the way to read this legislation, and one has to take into account the presumption of constitutionality. The government did not intend to amend section 50. The provisions do not purport to amend section 50, and there is certainly a plausible way to read Bill C-16 as coming within the terms of section 50. That is the approach that the government is putting forward.
Senator Joyal: I am glad you are quoting the interpretation given by the court in the Senate reference on the interpretation of section 91(1), because that is essentially one of the key arguments that we have to study in relation to Bill S-4, with respect to the interpretation of the scope of section 44 of the Constitution, as you know.
Mr. Newman: Yes.
Senator Joyal: We might have the opportunity to debate that in another meeting in the future.
The net effect of Bill C-16 is essentially to limit by statute the maximum life of a Parliament to four years, while in the Constitution it could go up to five. There is no question about that. We cannot negate the evidence of the effect of this bill. It is to limit from then on the capacity for a Parliament to survive for more than four years. Now it can survive up to four years and two months, four years and three months, or four years and nine or even 11 months. The net effect of the bill is essentially to prevent the fifth year of the existence of Parliament.
The Chairman: Senator Joyal, you have put that question to the minister and you have put it to the lawyer. They have both responded to it. I gather that you are not satisfied with the responses that either of them have given you to the suggestion that this bill, in putting in a limit of four years, is not allowing the full five years now permitted in the Constitution. You are not accepting that.
Senator Joyal: No, I am not accepting that. I think that the very existence of the wording of section 50 provides for an additional possible 12 months that will not be possible with the amendments contained in Bill C-16. That is my point. It limits the possible life of a Parliament of an additional possible 12 months. That is essentially the impact of this bill.
We can agree to disagree on your interpretation of section 50, and I submit to you that, if the government wants to change that, it could go through section 44 of the Constitution in relation to this very section of the Constitution, because it pertains to the House of Commons only and does not affect the institutions of Parliament per se, or the essential characteristics of Parliament.
That being said, I would like to continue on the other issue, the prerogative of the executive. As the minister said properly, the net effect of this bill is to remove the prerogative of the Prime Minister to go and seek dissolution of Parliament at any time before four years, and not after four years because now he will be prevented from doing this with Bill C-16. It is essentially to fetter the prerogative of the Prime Minister, after three and a half years or three years and nine months, to go to the Governor General and seek dissolution. The Governor General would be put in a very difficult position if the Governor General received a visit from the Prime Minister with a request to dissolve Parliament after three years and nine months, according to this bill.
In other words, for the Prime Minister to be able to go to the Governor General and request dissolution, the Prime Minister would have to have a vote of non-confidence formally registered in Parliament, if I understand the way the prerogative will be acted upon. Am I right or wrong?
Mr. Nicholson: I did not want to leave the impression that only a four-year period of time could take place. If, in fact, Parliament is dissolved by reason of a minority government, that will leave four years and six or eight months, but less than five years. You say the only way would be by a motion of non-confidence. I think I indicated that, for instance, if the government lost the confidence of the House of Commons by reason of the defeat of the budget implementation bill, that is not a resolution of the House of Commons. Nonetheless, it affects the confidence convention, and the Prime Minister would be within his or her right of attending upon the Governor General and asking for dissolution of Parliament on that basis.
Senator Joyal: With respect to any other issue, if the government —
Mr. Nicholson: If there was no reason, you are right. I indicated that if for no reason the Prime Minister went after three years and nine months and asked the Governor General to dissolve in the face of legislation, that would be a very difficult constitutional question facing the Governor General. Depending on how the Prime Minister survived that hurdle, it would seem to be an issue for the public of Canada, because it would fly in the face of the legislation before you today.
Senator Joyal: In other words, if you claim that the prerogative of the Governor General would not be impaired by this bill, in that context, the Governor General could send back the Prime Minister asking him to return with a clear vote of non-confidence from the House of Commons?
Mr. Nicholson: Again, I will not presuppose the Governor General's actions, but I imagine that the Governor General, any Governor General, would want to be satisfied that the Prime Minister had lost the confidence of the House. Whether that was by means of a resolution or by the defeat of an important piece of legislation, as in the example I provided, the Governor General would be within his or her right to ask those questions.
Senator Joyal: I am not talking about a money bill. The convention in that is essential to the principle of responsible government.
As Senator Milne suggested in her question, it is rooted in the preamble of the Constitution. That is the fundamental principle of responsible government and the fundamental character of a Westminster-style Parliament versus a presidential system. We are all aware of that.
The very point I want to understand is this: The Prime Minister who calls an election, not on a money bill in which they would be defeated, but on another issue, would have to request from the House a vote of confidence, which the Prime Minister or the government party would lose in order to allow the Prime Minister to seek dissolution of Parliament from the Governor General.
Mr. Nicholson: We would have to see the set of facts that came together. Again, we are not trying to affect the confidence convention. We made that very clear.
The confidence convention itself has evolved somewhat over the last couple of hundred years. If you are asking me under what circumstances the government has lost confidence in the House, again, it is not precisely defined anywhere in our Constitution as to what the confidence convention is. It is one of those things you know when you see them; you understand it when it is before you. That will continue.
Senator Di Nino: I think this is an opportune time for those in opposition to ask questions on this issue.
Three other provinces have enacted legislation that this legislation is modeled after. They all did it for the same reason, to curtail the power of the First Minister to his or her own will and for their party's benefit. They have gone through this process and, to my knowledge, no challenges have been raised by anyone, constitutional or otherwise. I do not believe there have been.
Do you know whether any challenges have been raised, and if so, what have the results been?
Mr. Nicholson: I know of no challenge to any of the three provincial legislatures, on constitutional or other grounds, with respect to the legislation they have passed. My understanding is that their legislation is as carefully drafted as ours is and would withstand any constitutional challenge.
The Chairman: I would ask Mr. Newman to respond to the same question.
Mr. Newman: I am not aware of any challenges, and I verily believe there have not been any raised to the constitutionality, legality or propriety of the other provincial legislative initiatives in this area.
Senator Bryden: Thank you for being present, Mr. Minister.
Our Parliament is different from those of the provinces. The provinces have one legislative body. We have two. It is easier for me to understand why, when the parliaments in the provinces have non-confidence in their government, their government must resign. However, in the Parliament of Canada the Senate, although it is not a confidence chamber, can have an effect on what the government does. If, for instance, in the Parliament of Canada a government has been elected and after two years it sees an opportunity, for example, for free trade — going back to the free trade debate — but runs into a recalcitrant Senate — which in fact is what happened on that occasion, the Senate, although it is not a confidence chamber, holds all of the powers that the House of Commons holds, including the powers to amend and delay and indeed to veto. In the actual instance of the free trade debate, the solution of the government of that day was to call an election and go to the people to resolve the issue. They did that and won. With that mandate, they were able to proceed with the free trade situation.
My question is this: Presented with the same situation, how would the government under this bill dissolve Parliament and go to the people?
Mr. Nicholson: That is a very interesting question. I was there during the free trade debate. Without having been privy to the discussions between the Prime Minister and the Governor General, the Prime Minister may have made the case that it was necessary to go to the people to obtain a mandate, because he believed that he was unable to maintain the confidence of Parliament. My guess is that he perhaps extended that to the upper chamber. I am not sure.
Senator Bryden: However, powerful as prime ministers are, they are not able to extend beyond the constitutional position. A similar situation happened in the GST debate. A different solution was ultimately reached.
Mr. Nicholson: I remember that. I think we created another eight senators at that time.
Senator Bryden: Yes. It was rather an extraordinary measure. Really, the point is that situations develop in which opportunities present themselves and the government feels that it really does need the mandate of the people in order to carry out what may be a very controversial and difficult thing, but one which the government of the day knows is the right thing to do.
That is not a confidence matter, because the government probably has the support of the majority. Let us say it is a majority government of the House of Commons. It is not an answer to say, ``We have lost the confidence of Parliament,'' because we are not a confidence chamber; but we can get in the way sometimes. I do not see, really, any way that there is discretion, or an opportunity for the government of the day or the Prime Minister of the day, to be able to do that, to deal with that.
The other side of that coin is that a government may be in office for two years, say, and because it is really inept there are outcries across the nation that nothing is being done, or there may be suspicions of all kinds of things, but the government is able to last because it has a majority. As we all know, and we have been in this game a long time, there are ways in which you can keep people in line in the House of Commons, particularly in your own party. If there is really a demand, then, short of a revolution and of people going and hitting the streets, how do the people, in fact, get an opportunity to get rid of this government? There is no constitutional basis. So long as he can handle the confidence in his own House, the Prime Minister can stay there.
If we look south of the border, at the moment there are some folks who would be very happy to get rid of the Chief Executive Officer in the U.S. Our system, up until now, has been able to accommodate those types of situations. In the U.S. they can accommodate it too, but it is a very difficult procedure to go through impeachment and so on.
I am concerned that this bill, because of the bicameral system that we have. Of course, I realize that some of your colleagues might suggest that the easy answer would be to get rid of the Senate. That might not be as easy as you would think. Nevertheless, what I have described is what we have now, and it may tie the hands of a good government one way or the other, or tie the hands of the people in order to force a government to come back for another mandate before doing whatever controversial thing it wants to do — let us say joining the star wars situation.
The Chairman: Those are two excellent questions and we will have the answers, but first could you just answer this one question? You said the other side of the coin is what if there were a government that was totally inept and things were not happening and nothing was being done and they were there for two years, and you suggested that under our present system something could be done. If it were a majority government, what could be done for an inept government that had been there for two years, with nothing happening? What could we do under our present system?
Senator Bryden: You are right.
The Chairman: I would like the minister to answer that. I would also like to hear from the Privy Council Office.
Mr. Nicholson: Senator, you raise a very interesting constitutional point. I think what you are asking me is what would happen if there was a majority government that had the confidence of the House of Commons but there was a recalcitrant Senate. It seems to me the better question would be why would the Senate, against all constitutional principles, then stand in the way of the will of the people and the majority of the House of Commons? That would be an interesting constitutional question in and of itself. The reverse of that is what would happen if you had a party that, as in your example, had a majority government and was two years into its mandate; it would be less likely that something would happen to displace that government. I would suggest to you that the people's ability to displace that government would actually come sooner as opposed to later. A government that was hugely unpopular or incompetent would probably wait the whole five years, and usually we have found that when governments have gone the whole five years the people have had a very strong opinion about that.
Again, with respect to our system of government, as Senator Milne was pointing out, it is in part unwritten and these are the things we deal with. You are right: a Senate that refused to pass legislation from a majority of the will of the House of Commons would present its own constitutional challenges. On the other hand, if a government, in the opinion of some or perhaps most people, is incompetent after two years into its majority, it could very well continue unless there was some cause, of a nature that would be very difficult for me to describe, for which the Governor General intervened; but those latent powers are always there with the Crown. I do not see how this bill would alter that, but in your specific example people would be able to get at that government about 12 months earlier than they might otherwise.
Senator Bryden: I have one comment, which is on the free trade debate. As I understand it, the government that was elected basically campaigned, not pushing free trade, indeed against the point of free trade. However, once it was in for two years, there was a change of opportunity and a change of mind, and it decided that it would go after a free trade agreement with the U.S. The Senate did what it was supposed to do and basically said, ``That is not the will of the people. You just tested the will of the people two years ago and they said no. They voted you in but not with that mandate.''
Mr. Nicholson: It seems to me that on the free trade debate the government, and I was a member of the government, had actually been in office for four years; so there are those who could make the argument that it was reasonable, and it was actually suggested to us that there was a constitutional convention, quite apart from the five-year maximum, that suggested we actually should go after four years. It seems to me that the election of 1988 was called at or about two weeks, or within several days or a couple of weeks, shy of a four-year term, and the government did receive another mandate.
Senator Bryden: Yes, they did and that was the famous free trade election.
Mr. Nicholson: I appreciate that.
The Chairman: Senator Bryden, your question was so good I really would like to hear a response from the Privy Council Office on the fascinating point that you raised.
Mr. McDougall: What we have tried to do in crafting this bill is to stay within the conventions of responsible government and within the parameters of the Constitution as they exist now. As has been indicated, there will always be these ``difficult'' areas that come up when one is trying to interpret the conventions and how they have been applied over the years — and indeed what constitutes the convention as of this very day. Those problems will not disappear because of the passage of this bill. Issues will undoubtedly arise that will require interpretation and some discernment as to what is the correct application of the convention.
The Chairman: His question was more than that though. With this bill are we cutting off and removing something that was essential to the way our democracy works? That was the way I understood his question, and it was a good one.
Mr. Nicholson: Indeed, it is a very good question and we do not think that that is what is happening with this bill. What this bill is trying to do is address the opposite situation. It is not the situation where the government is going on a clear question with a clear mandate seeking a new mandate from the people, as is the example on your free trade. What this bill is intended to do is to address the situation where, for political expediency and because of public opinion polls or another issue that may be driving the public and the expectation is that a new mandate can be had, the government will pull the plug at a whim to try to deal with public opinion polls, when there is not a real issue, which is what arguably should be the focus of a compaign. It is trying to address that situation more than outlying issues that we are dealing with in trying to orchestrate a defeat.
Senator Bryden: Sometimes when you cast a net to catch certain fish, you get some that you really do not want. I believe that there is a possibility of that here.
The Chairman: That is the bycatch.
Douglas Wolfe, Senior Policy Advisor, Legislation and House Planning, Privy Council Office: The situation in which an election is called to decide what will happen on a question such as the free trade agreement is very rare. That situation has only arisen on that occasion, at least in recent memory.
Generally, as my colleague indicated, elections are called on the basis of the interests of the political party in power. Of course we do not know exactly what is in the mind of a Prime Minister when he or she requests dissolution, but the situation that the honourable senator has outlined is fairly rare, at least in recent history.
Senator Stratton: If a government was two years into its mandate and something like the GST issue or the free trade agreement came up, where there was an impasse, would the Prime Minister not go to the Governor General and say that due to the perceived problem the House should be dissolved and an election called? Would that not be the appropriate route to take?
Mr. Nicholson: That is a possibility, of course. If the Senate were refusing to abide by the will of the elected House, that would be a constitutional crisis and perhaps cause for a meeting between the Governor General and the Prime Minister.
Senator Ringuette: Mr. Minister, you said that this bill should curtail the power of the Prime Minister. When you were saying that, I was recalling the last 10 months of federal politics. You indicated that a defeat on a motion or resolution could also trigger an early election.
I thought back to motions before the House. There was the motion on Afghanistan and the motion on the softwood agreement, as well as a motion dealing with Kyoto. I recall that the Prime Minister said publicly that on at least two of the three motions he was ready to call an election. He was not speaking of money bills; he was speaking of motions.
Therefore, I conclude, although I hope you can prove to me that I am wrong, that this bill is window-dressing, because it does not curtail the power of the Prime Minister to decide, from his perspective, what is a confidence or a non-confidence issue. The matter is left to his power of persuasion on the Governor General. Therefore, this bill is nothing but window-dressing.
In addition, it gives the impression to the Canadian population and the opposition parties that the Prime Minister has no intention of calling an early election. However, that is not the reality.
If you amended this bill so that it would curtail the power of the Prime Minister to persuade the Governor General that a vote against sending troops to Afghanistan for an additional nine years or a vote in favour of Kyoto is a vote of lack of confidence in the government, that would be reasonable. However, looking back at the last 10 months of this government, I see this bill as window-dressing.
Mr. Nicholson: Senator, a bill like this is another matter on which the government or the prime minister of the day can be judged. In your hypothetical example, a prime minister commits Canadian troops for nine years. A prime minister committing this country to a theatre of war would raise an interesting discussion. I believe that a prime minister has lost the confidence of the House of Commons if there is a fundamental disagreement in the House on whether this country is going to war or is committing troops to a theatre of war.
You may argue that that is not a confidence matter, but again the confidence convention is preserved vis-à-vis the Governor General. It is not intended to do that. It is intended to provide more predictability. In the example Senator Joyal gave, a prime minister who is three years and nine months into his mandate decides to ask the Governor General for a dissolution. Such a prime minister would have some difficulty persuading the Governor General that he or she had lost the confidence of the House or that the public should go to the polls three or six months hence. I believe it is a step in the right direction, senator.
Senator Ringuette: You have reinforced your earlier comment that an election can be called at any time so long as the Prime Minister can make the case to the Governor General. These are your words. I stand by what I am saying. Unless this bill is amended to provide measures to curtail the power of the Prime Minister, it is window dressing.
Mr. Nicholson: If it was the will of Parliament, the House of Commons and the Senate, to leave the prerogative of the Prime Minister completely intact, that would have been a decision for this Parliament to make. I have made the point to you that the House of Commons has unanimously accepted this as a step forward, as a good and important piece of legislation, and I am urging you to study it and to ask questions, but to enact it in the form in which the House of Commons passed it.
In your example, if a prime minister, after three and a half years, for no reason understandable to the public, demanded a dissolution of Parliament by the Governor General, I believe that under this legislation the Governor General would be within his or her rights to deny that. At this time, there is nothing stopping any prime minister who sees an electoral advantage from asking the Governor General to dissolve Parliament and call an election, even though there is no issue that could in any way be described as a confidence matter. However, under this bill a prime minister would be restricted in that situation.
In your example, if a prime minister was committing troops for nine years to a theatre of war, I believe that a pretty good case could be made by that prime minister, if he or she did not get the approval of Parliament, that he or she had lost the confidence of the House. I do not believe it is confined only to money bills.
Senator Ringuette: In my political experience, both provincially and federally, knowing many of the players on all sides of the political spectrum, I believe that any political issue can become a confidence issue if declared so by the Prime Minister.
You have not convinced me.
Mr. Nicholson: I cannot answer for the people that you know or for your experience, but in my experience and from my belief I think that this will work. It is a step forward.
Mr. Wolfe: If I might add something to that, the legislation before us was drafted really with a view to the provincial legislation in British Columbia, Ontario and Newfoundland and Labrador. If we look at the British Columbia legislation, it created a firm expectation that the election would take place on May 17, 2005. The expectation was created very firmly in the minds of the population of British Columbia that the election would take place at that time. It would have been very difficult for the then Premier of British Columbia to depart from that expectation. Certainly, a political price would have to have been paid had there been a departure from that date.
Mr. McDougall: If I could add a further point, this is also a trend within parliamentary democracy, which is going this way as well. It is not just Canada that is looking at this within our system. There is a general movement towards this around the world. More and more states are looking towards establishing fixed dates for elections. For example, even within the United Kingdom, the devolved Parliaments in Scotland and Wales also have fixed dates established for those situations as well.
A number of academic studies have looked at this situation around the world. Canada and the Westminster Parliament itself are more the outliers now than the norm in terms of this trend. It is a step that governments are generally looking towards to try to improve the functioning of the system. I suspect you often get into the types of debate we see here, where one side advocates more of a presidential aspect in which there are absolutely fixed terms, and it is clear that you cannot change the immutable type of system that they have in the United States.
The expression that has been coined for this is ``fixed flexible term.'' In effect this is more of a fixed flexible term, and it has to be in order to operate within the constitutional parameters we have and with the system of responsible government we have here, which also tends to be the norm in other parliamentary democracies that are looking towards this type of system.
Senator Ringuette: Exactly that. With regard to parliamentary democracy, I am a believer in the representative responsibility of the member of the House of Commons. On a policy issue, if the members of the House of Commons vote against a motion, that is the desire of the people. It does not necessarily call for the defeat of a government. That is where democracy is moving.
My concern here is that this bill is not responding to the real, new trend of democracy and the powers of the members of the House of Commons to represent the people in the House of Commons and to be able to say to a government that the majority of the Canadian population do not agree with a particular policy. That is very different from a non-confidence vote on a money bill.
You can have a prime minister who says, okay, you do not agree with my policy, so I will call an election and justify that to the Governor General. I have stated my case.
The Chairman: Minister, I know that you have come here tonight as House leader and you are in the midst of a major debate in your House. We have finished the first round; I have a number of senators down for the second round. We have been an hour and a half and I should like to know, before I go further, how much more time you have with us here before you have to go back to your debate; do we have time to do a second round?
Mr. Nicholson: By all means, senator. Let us do the second round.
Senator Milne: I am still very concerned about this inflexible seven days: clause 1 of the bill, proposed section 56.2(4) of the Canada Elections Act. From a pragmatic point of view, I was born during one of my father's election campaigns. I have been involved in elections all my life. Since Mr. Wolfe and Mr. McDougall have segued into talking about fixed terms in other provinces, what is going to happen as more and more provinces go to fixed terms and inevitably election dates begin to coincide? In British Columbia they have set May 17; no problem there. However, in Ontario it is October 4. In Newfoundland it is the second Tuesday in October. Now for Canada it is the third Monday in October. I know this causes confusion in people's minds; it causes difficulty for Elections Canada to find people to man the polls and control advertising and all the rest of it; and it also causes difficulty for candidates just to find volunteers to get out there and knock on doors for them.
I am very concerned about the inflexibility of that seven-day envelope that you have given in this bill. How do you propose to deal with the pragmatic problems on the ground?
Mr. Nicholson: Senator, I agree with you that there is always a potential for a conflict somewhere. I suppose one of the advantages in having the federal Parliament take out the third Monday in October every fourth year following a general election — and I believe others will be moving to fixed dates for elections as well — is that it will be less likely that others will choose the same date.
Senator Milne: It depends on the vote of confidence.
Mr. Nicholson: I believe it was in the year 2000 that the federal election was called in the middle of the municipal election in Ontario. We had the Ontario election, we had the federal election going on, and there was a by-election in the riding of Welland next to me in the province. We had all three levels of government confronting the people in Welland. I can tell you that the people of Welland and my area survived it; they sorted it out and made it more of a challenge for those of us campaigning federally to see 30 or 40 candidates at the municipal level.
Again, our democracy is not always clean and perfect, and moving to a set date for election actually makes it a little easier to get volunteers and to plan around it, knowing when it is.
In my experience over the last few decades with respect to these elections, it became more challenging when nobody knew when the election was going to be called and it came unexpectedly. In the situation that I described to you in the year 2000 there were some challenges for the electorate.
Senator Milne: In some areas it will make it impossible to find polling places.
Mr. Nicholson: I think the Chief Electoral Officer will confirm, when he appears before you, that, in terms of locating space and actually setting up the apparatus for an election, this actually would make it easier for him, rather than having to be in constant readiness for two years, really on a moment's notice, to have to set up and get office space. I think that is a greater challenge, but I will let him speak for himself.
Senator Milne: The greater challenge is finding polling places for all of these different elections occurring in the same place at the same time.
I understand that when the Chief Electoral Officer appeared before the committee in the House of Commons on this bill he suggested expanding the time during which government advertising is restricted from the writ period alone to four weeks prior to the writ period. Has any consideration been given to that? I am thinking of all the different parties in different provinces at different levels of government all competing for advertising time.
Mr. Nicholson: This bill does not address that, and I will take that as a representation and a matter that perhaps we should look into.
Senator Milne: I know that in 2005 the chief electoral officers gathered in the Yukon and discussed the advantages and disadvantages of fixed date elections. Did you consult with any of them? I do not know what their conclusions were. Did you take those into consideration before drawing up this bill?
Mr. Nicholson: I, personally, did not, because I did not have that particular responsibility at the time. In my discussions with departmental officials, I have learned that they canvassed this every which way, and the recommendations were consistent with what we promised in the last election.
Senator Milne: In other words, the answer is, no, you did not give those consideration.
Mr. Nicholson: I was not a part of that discussion and I was not at that conference in the Yukon. It is my understanding that recommendations that came from there and elsewhere went into the mix in drafting this bill.
Senator Milne: I understand that the PCO drafted this bill. Did you take this into consideration?
Mr. McDougall: We have taken into consideration whatever studies and evidence we could find on this. In terms of specific consultations, we consulted with Elections Canada, not with the provincial electoral officials. However, I believe that some provincial officials testified when the bill was before the House Affairs Committee of the House of Commons. In pre-study and pre-drafting the bill, we did not consult with provincial officials; we consulted with the federal electoral officials.
Senator Cowan: Senator Bryden posed a very interesting question. The answer to the hypothetical situations that he expressed is the one that Senator Stratton answered with: The Prime Minister would simply say that he has a deadlock and needs it settled.
What would you do in a situation in which a party takes a campaign position on, for example, wage and price controls, gets elected and then changes its mind after it takes office. It could be that the answer is the same.
It seems to me that it is further complicated if we reach the point where the Senate is elected in some way. That is why we wait with great interest. I do not know whether a Senate election bill falls within your mandate, but the Prime Minister has indicated he expects this fall —
Mr. Nicholson: Let me know how you feel about that before I answer.
Senator Cowan: When I see the bill, I will be delighted to give you the benefit of my views, but I do not answer hypothetical questions. We are the house of sober second thought; it is not our job to be first thought.
Obviously, it would be further complicated if there were an elected Senate and the House of Commons were not able to say that it alone represents the views of the people. If there were two chambers, both of which were elected in some manner, then that issue would be complicated. The other part is a small offshoot or variation on the theme that Senator Bryden alluded to: In our system, clearly the party leader is the central part of our system and, perhaps, the most significant determinant of voting choices. We have had situations whereby parties have been elected and prime ministers, for very good reason, have chosen to step aside and be succeeded by others, again for very good reason. The new prime minister might wish to seek a fresh mandate to take the party or the government in quite a different direction, given that circumstances have changed since the last election. There is no loss of confidence in this example. Would you see Senator Stratton's answer being the solution in such a situation? Would it be legitimate for the new prime minister in that circumstance to ask for another election in order to get a new mandate?
Mr. Nicholson: I do not think it would be legitimate, just in my opinion. Once the commitment has been made to have the election every fourth year in October, if the prime minister decides on his own that it would be an opportune time now to call an election, the Governor General would certainly be within his or her rights to decline that. As you were talking about the situation of Sir John A. Macdonald who passed away in the summer of 1891, I was thinking that he was succeeded by four Conservative prime ministers trying to make their mark. The mandate went the full extent before Sir Charles Tupper went down to defeat at the hands of Sir Wilfrid Laurier. I believe that I am correct when I say that this bill would make it difficult for a prime minister to make that case to a Governor General. I would have no doubt that a Governor General would probably refuse an individual in that case, on the face of legislation such as this proposes.
The Chairman: I would like to read into the record a quotation from the report of the Library of Parliament prepared for this bill that deals with the question just raised by Senator Cowan. At page 8 it states:
In December 2004, Newfoundland and Labrador adopted amendments to the House of Assembly Act to provide a fixed date for the holding of a general election in the province. The first date before a general election is the second Tuesday in October 2007, and thereafter elections will be held at four-year intervals. The bill also provides that by-elections are to be called within 60 days of seats becoming vacant, and held within 30 days of the issue of the writ. It also requires that in the event of a new leader being sworn in as Premier, an election is to be held within 12 months.
Senator Joyal: Mr. Minister, your comment is essentially in the context of the question I wish to ask. Bill C-16 conveys a great danger of putting the Governor General in an untenable position, because he or she will become the arbitrator of the implementation of the bill and will have to decide whether the vote of non-confidence or confidence is sufficient. Perhaps the situation in which the government operates in relation to Parliament might be similar to that described by Senator Bryden's example or Senator Stratton's example. We can imagine many situations in which the Governor General could become the arbitrator. This bill proposes to vest powers in the Governor General with no capacity to find the solace of the neutrality of his or her position in relation to the solution as we have seen it.
Did you measure up the context in which the Governor General would have to operate in terms of dissolution?
Mr. Nicholson: Likely, you agree with my earlier comment that it does curtail the powers of the prime minister, so you might have a discussion with Senator Ringuette as to whether it does. Again, if you are telling me there is more discretion or that the Governor General will have to make that decision, then those residual powers are with the Governor General now and the Governor General must always face that if a prime minister acts in an irresponsible manner or in the face of legislation. That would always be a decision that the Governor General would have to make.
Senator Joyal: The Governor General would become the object of an election. As my colleague Senator Milne said, we have experienced in Canadian political history times when the issue has become the decision of the Governor General, who is not elected but appointed, to refuse dissolution of Parliament when the leader of the majority party in the House of Commons is of the conviction that he or she has lost the confidence of the House or is not in a position to govern and, therefore, wishes to seek a mandate from the electorate.
Mr. Nicholson: I am not so sure that that is any different than the position the Governor General is in today. In the case of a minority Parliament, Senator Milne mentioned the King-Byng affair; I believe the Prime Minister at that time lost the confidence of the House very quickly after a general election. It was the decision of Lord Byng, at that point, that Arthur Meighen should be chosen as Prime Minister. Ultimately, as was the case, the people of Canada did decide on that. Ultimately, they are the final arbiters of whether everyone has it right.
It is not too dissimilar to the situation that happened in Australia in the mid-1970s, when there was a conflict between the positions taken by the Prime Minister and the Governor General of Australia. Ultimately, the people of Australia sorted it out. Senator Joyal, if a prime minister who had a majority government was irresponsible and, on a pretext of trying to win another majority, asked for the dissolution of Parliament, I have no doubt, whether he or she got it or not, that ultimately the people of this country would make the decision whether the prime minister had acted in a responsible manner.
Mr. McDougall: I believe the previous Governor General addressed this very issue in her most recent memoirs, as well. She expressed that it was an issue she had to prepare herself for in the context of recent minority governments. Just to reinforce the point, it is an issue that can arise with the current situation as well; it is not an issue that is being created by this particular bill.
Senator Joyal: In the minority situation, anyone will understand that. The minority situation exists now and continues to exist; it is not that situation that is changed. The situation that is changed now is in a majority government context.
Unless I read the bill incorrectly, it applies in the context of a party that has a majority to govern. That is essentially the scenario in which we operate under this bill. That is why I feel that it puts the Governor General into a difficult position as being the arbiter of what is the political situation. Is it a loss of confidence or is it the fact that the Prime Minister does not have the proper motive, but only a pretext, to request dissolution?
Mr. Nicholson: In your situation, senator, if the Prime Minister has a majority government and then after two years, or four years, decides that he or she wants an election, it is not the Governor General who has the problem; I think it is the Prime Minister who has the problem.
Senator Joyal: We have seen in the history of Canada some governments that had difficulty in implementing their programs and decided to go back to the electorate to seek a mandate.
Mr. Nicholson: That becomes more difficult with this legislation.
Senator Joyal: I think so, because this legislation states that the life of Parliament is four years.
Mr. Nicholson: Exactly. In a majority context, that is what people can count on. If the Prime Minister, on whatever pretext, decided after two years to call an election, it would not be just the Governor General who would have something to say about this. If the Governor General, for whatever reason, was persuaded to call an election, the people of Canada would be the final arbiters and that is the way it should be.
Senator Joyal: I feel that you put the Governor General into an untenable position of being involved in making a judgment based essentially on a political situation.
Mr. Nicholson: In a minority situation in the province of Ontario, after the 1985 provincial election, the Progressive Conservative Party had the largest number of seats and decided to meet the Ontario legislature as the government under Frank Miller at the time. There were many who said that, if Mr. Miller had made that call on the Lieutenant Governor, the Lieutenant Governor would have been within his rights to call, as he subsequently did, upon Mr. Peterson and Mr. Rae to come to some sort of an accommodation to form the government. You are right; if Mr. Miller had acted irresponsibly — and there was no suggestion at the time that he would — the Lieutenant Governor, with his residual powers, would have been in that position. Ultimately, the people of Ontario in that case would get to decide.
You are quite correct. The Governor General, within our system in the 21st century, can be placed in a difficult position by the Prime Minister. That is the system we have inherited and we have adapted for this country, and that will not change. The Prime Minister could do that; but I have confidence that the people of this country will sort it out.
Senator Joyal: In the context of a crisis with the Governor General, that is the difference; that, in fact, this bill —
Mr. Nicholson: I think we would have a crisis; that is why I used the parallel. If a prime minister elected with a majority government, with legislation like this in place, decided after a certain point that he or she just wanted the election and had a majority in the House of Commons, I think that would be putting the Governor General in one of those crisis situations that you mentioned.
Senator Joyal: I know, but what you are trying to describe is a situation that is totally unreal. A prime minister who wants to have an election will have one. The prime minister will certainly go to the people to get a mandate to implement a program or a platform, to try to solve an issue in which the government finds itself stuck in Parliament, such as the one that Senator Bryden mentioned — or because a government feels that it cannot move its agenda in the House for whatever reasons.
Mr. Nicholson: We will cross that bridge when we get to it.
The Chairman: You have just had the last word, Minister. On behalf of the committee, I want to thank you, along with Mr. McDougall, Mr. Wolfe and Mr. Newman, not just for making a regular appearance, but, in this case, for the benefit of your views on political science, Canadian history, constitutional law and finally common sense, to respond to many of the fascinating questions raised by honourable senators, particularly the Bryden question. Thank you also for coming on very short notice and leaving your work on the Hill.
The committee adjourned.