Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence, March 29, 2007
OTTAWA, Thursday, March 29, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-4, to amend the Constitution Act, 1867 (Senate tenure), met this day at 10:50 a.m. to give consideration to the bill.
Senator Lorna Milne (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: Honourable senators, I see a quorum. I welcome our audience to the Standing Senate Committee on Legal and Constitutional Affairs. Today, we are continuing our study of Bill S 4, to amend the Constitution Act, 1867, on Senate tenure. Bill S-4 consists of one substantive clause that would amend section 29 of the Constitution Act. The amendment would replace the existing term of appointments for senators, which is until retirement at age 75, with a new term of appointment for eight years. These terms could be renewed. Appointments would continue to be made by the Prime Minister as they are today.
Bill S-4 was introduced in the Senate on May 30, 2006. A Special Senate Committee was created by the Senate on June 21, 2006, to study the subject matter of the bill along with other issues of Senate reform. That committee heard the testimony of 26 witnesses, among whom was the Prime Minister of Canada, who appeared on September 7, 2006, and described this bill as proposing a «modest but positive reform for the Senate.»
This committee begins its work with several notable advantages, which should help us to proceed expeditiously. It has been able to review the expert evidence given to that Special Senate Committee on Senate Reform, the transcripts of which have been circulated. This committee has the benefit of the report of the Special Committee also, which provides excellent background discussion and analysis relating to the reform issues raised by Bill S-4. For those who may be interested, that report is available on the Senate website at the link to the Special Senate Committee on Senate Reform. Finally, this committee has the benefit of extensive debate in the chamber on both this bill and the report of the Special Senate Committee on Senate Reform.
This bill has been before the Senate for 110 possible sitting days stretching over nearly 11 months. A great deal of useful work has been done in this time. This committee has decided to use that work rather than duplicate it, so with the exception of a few individuals, we will rely on the evidence provided by experts before the special committee rather than hearing them again.
We have relied on that evidence and other work that has been done to narrow our scope of inquiry to two essential issues still outstanding. The first issue is the constitutionality of the bill. Can Parliament amend the Constitution to create Senate terms without involving the provinces? The second is the eight-year term. Are renewable eight-year terms the best option available for the Senate?
We have focused our consideration of this bill, and we have been granted leave for extended time to hear witnesses so that we can do our work well. This should allow us to give this important bill the rigorous attention that the public requires. We will be able to proceed efficiently and to move forward in a timely way to address other government legislation now before this committee.
I turn to the business before the committee and the first in a series of witnesses who have agreed to appear. I welcome Professor Errol Mendes from the Faculty of Law at the University of Ottawa. He has taught, researched, consulted and published extensively in the area of international business law, ethics, constitutional law and human rights law. He is the editor-in-chief of Canada's leading constitutional law journal, the National Journal of Constitutional Law. He is the author or co-editor of five books, including the landmark constitutional law text co- edited with Senator Beaudoin, past chairman of the Standing Senate Committee on Legal and Constitutional Affairs. The law text is entitled, The Canadian Charter of Rights and Freedoms, Third Edition, Carswell, 1996. Professor Mendes is a frequent speaker and a media commentator on international business ethics and constitutional and human rights topics across Canada and around the world. He has been invited to present numerous briefs to the Parliament of Canada and has acted as adviser to the government in these areas.
Welcome once again, Professor Mendes. You have been here several times before. Please proceed.
Errol P. Mendes, Professor, Faculty of Law, University of Ottawa, as an individual: Thank you. I express my great honour to appear before this committee on this important topic.
Bill S-4 is essentially an ordinary proposed act of Parliament or an attempted birth of an ordinary act of Parliament. Fundamental to our constitutional framework is that these kinds of bills conform to the written and, equally as important, the unwritten parts of our constitutional framework. An important part of the unwritten part of our Constitution is the entrenchment by the Supreme Court of Canada of the notion of parliamentary privilege.
The seminal case that occurred in this area in 1993 was New Brunswick Broadcasting Co. v. Nova Scotia, where the Supreme Court held that the parliamentary privilege of the House of Commons and the Senate, as a set of powers and privileges, were essential and necessary to the capacity to function as legislative bodies and, indeed, are an integral part of the supreme law of Canada, the Constitution of Canada.
It is therefore clear that any Senate reform by ordinary statute must ensure that it does not breach any of the Senate's parliamentary privileges. If any ordinary statute were to do so, it would be subject to being declared null and void under the supremacy clause, section 52, of the Canadian Constitution.
It is my view that because of the New Brunswick Broadcasting Co. decision, it might well be the result of the majority's decision in that case, written by then Justice Beverly McLachlin and concurred in by five other justices, that we might need to use the general amending formula in section 42 of the Constitution Act, 1982, for any Senate reforms that affect the parliamentary privileges of the Senate.
I suggest that this result is reinforced by the express wording of section 42, which includes in section 42(1)(b) that the powers of the Senate and the method of selecting senators must be done by the general amending formula. I suggest that the reference to powers includes the parliamentary privileges of this esteemed body.
It then becomes critical to decide whether, after the New Brunswick Broadcasting Co. case, the powers of the Senate include parliamentary privileges that may or may not be affected by Bill S-4.
A more recent decision of the Supreme Court of Canada offers some guidance as to the parameters of such parliamentary privileges in the context of our Parliament. The Vaid decision in 2005 was unanimous. The Supreme Court of Canada took the view that the core of parliamentary privilege is those powers that are necessary for the proper functioning of the House of Commons as a deliberative body.
I would suggest that that applies equally to the Senate and that the essential nature of the privileges of the Senate are those powers that are necessary for the proper functioning of the Senate as a deliberative body.
It then becomes absolutely crucial to examine whether any aspect of Bill S-4 attempts to affect the powers of the Senate that are necessary for the proper functioning of the Senate as a deliberative body. If the bill does affect such powers, then it is suggested that recourse must be made to the general amending formula in section 42 of the Constitution Act, 1982.
The supporters of Bill S-4, who claim that it is constitutional, say that on its face, the bill attempts only to limit the tenure of newly appointed senators after the bill comes into effect. However, the question has to be asked: Does the existence of newly appointed eight-year-term senators, working and sitting beside previously appointed senators with tenure until age 75, affect the proper functioning of the Senate as a deliberative body?
I have done some empirical work in this area. I have tested this question informally with a limited number of informed lawyers and one retired senator. The majority, including the retired senator, answered that having the mixed- term senators would most definitely affect the ability of the Senate to act as a deliberative body. One pointed out that it might be inevitable that an eight-year senator coming to the end of his term would be more likely to be less independent than the others, leading to a more fractious Senate and a less functioning Senate as a deliberative body capable of sober second thought. As one person consulted stated, the eight-year senator may have lots of time left in his or her career and his or her independent sober second thought may be affected by seeking either a renewal of the term or a senior public office appointment after the end of the term.
At minimum, this would suggest that an eight-year term is too short and could be constitutionally suspect. This conclusion could be reinforced by the possibility that in the future, with all senators having an eight-year term, a two- term prime minister could appoint the entire Senate. At minimum, serious consideration should be given to a much longer term in the region of 12 years and perhaps even longer.
If the Vaid decision of the Supreme Court of Canada would contemplate that the management of senior House of Commons officials comes within the scope of parliamentary privilege, would not the proper management of the very essential individuals constituting the Senate also come within the inherent powers of the Senate?
Keep in mind that the preamble to Bill S-4 expressly states that Parliament wishes to maintain the essential characteristics of the Senate within Canada's parliamentary democracy as a chamber of independent sober second thought. I suggest that not enough attention has been paid to the possibility of the independence of the Senate being affected by the introduction of the eight-year term senators. Indeed, too short a term may buy a patina of democratic legitimacy at the expense of the long-cherished independence in the Canadian parliamentary privilege of the Senate.
However, I suggest that there is an even more major cause for concern regarding the constitutionality of Bill S-4, because it is the first stage in a multi-stage process for future potential infractions of the Constitution of Canada. It is generally known that Bill S-4 is only a precursor to a larger attempt to have future appointments to the Senate come under a federally regulated advisory elections framework. In my view, if the two statutes or two attempts are linked, it is profoundly unconstitutional.
I believe this is an attempt to do what cannot be done directly without the clear instructions of section 42 and the general amending formula. Keep in mind that the Patriation Reference decision in 1981 informed Prime Minister Trudeau that he would breach constitutional conventions if he repatriated the Constitution without the substantial consent of the provinces. He backed down, the Supreme Court of Canada halted that attempt, and the rest is history.
In the development of a federal advisory election for senators, we have a much more serious attempt linked to Bill S- 4. This does indirectly what cannot be done directly, both under constitutional conventions and under the Constitution Acts, 1867 and 1982, without the involvement of provinces and provincial consent.
There is a question as to whether the federal government has jurisdiction under section 91 of the Constitution Act, 1867, to give it the power to legislate an advisory federal election framework that is intended to do indirectly what it cannot do directly. The only thing that I can think of that would even permit such a jurisdiction is the general peace, order and good government clause. One could argue that it is hardly good government to undermine the existing provisions of the Canadian Constitution.
You have heard legal opinions from the academy and from the justice department stating that as long as the Prime Minister retains his discretion under the existing Constitution to recommend to the Governor General who should be appointed, the advisory federal elections framework would be constitutional. I would like to ask those experts the following questions: What would happen the first time a prime minister refused to recommend appointment of a duly elected person under the so-called advisory election framework, if all the others had been appointed? What would the Supreme Court of Canada say about such a refusal if they were ever asked to determine the constitutionality of this process? What if the court declared the whole process unconstitutional so that those who were appointed were in limbo as to whether they could continue sitting?
The enormity of these potential consequences requires, at minimum, a broad consultation with all the partners in Canadian federation and preferably a reference to the Supreme Court of Canada regarding the constitutionality not only of this bill but of the bill that has been introduced in the House of Commons to provide for a fundamental assessment of whether what is being attempted is potentially undermining the constitutional framework of this country.
In conclusion, with all the arguments I have presented, there is good reason to suggest that Bill S-4 should be withdrawn until further study is undertaken to understand what is really at stake in this piecemeal and dubious attempt to reform the Senate so that it is consistent with the principles of modern democracy.
Indeed, any attempt at reform may also be profoundly undermining the preambular sentiment that the reform should respond to the needs of Canada's regions. If the reforms that this bill is linked to are carried out without the reform of the under-representation of Western Canada and the overrepresentation of Atlantic Canada, it would have the effect of entrenching these disparities and further exacerbating the needs of Canada's regions and national unity.
Reforms of our vital democratic institutions done in haste and intended to circumvent the existing provisions of the Constitution could well further undermine the principles of modern democracy, the democratic values of Canadians and ultimately the expectations of Canadians as regards the proper functioning of responsible government.
The Deputy Chairman: Thank you, Dr. Mendes. I have no one on the list, so I will take the opportunity to ask the first question.
You say that if the court declared the whole process unconstitutional, those who were appointed might be in limbo as to whether they could continue sitting. What would be your opinion, then, of legislation that had been passed with those eight-year-term senators voting on that legislation?
Mr. Mendes: That is precisely my point. There would be constitutional chaos. For that reason, this bill has to be linked into what is happening in the other House and for serious study to be undertaken as to the potentiality for its unconstitutionality.
[Translation]
Senator Nolin: Thank you for accepting our invitation. If I understand your argument correctly, you have consulted counsel, including one of our former colleagues, whose identity is known to all of us. What they feel, and you agree, could affect the proper functioning of the House as a deliberative body, to use the words of the court in the Vaid ruling, is the possibility that at the end of his or her term that term may be renewed by an authority other than his or her own request. That could affect the proper functioning of the deliberative body. Do I understand you correctly?
Mr. Mendes: Yes.
Senator Nolin: If we added a measure in the bill preventing a senator appointed for a 10 or 12-year term from being reappointed, that argument would have less weight.
Mr. Mendes: It is not really an obstacle with respect to the constitutionality of all legislation.
[English]
One has to link this bill with what is being introduced in the other House. When you put the two together, that is my major concern.
[Translation]
Senator Nolin: I understand. We are dealing here with Bill S-4.
Mr. Mendes: Yes.
Senator Nolin: We need to focus on this legislation and limit our analysis to the bill in question, which has as its sole objective to reduce the length of Senate terms. If we focus on the length of the term, if we add a prohibition on renewing the term, will term limits affect the effectiveness of the deliberative body?
[English]
Mr. Mendes: I will repeat my answer in English. Preventing renewal would help to ensure the fundamental parliamentary privilege of the Senate as a deliberative body capable of sober second thought. On the other hand, with an eight-year term that was not increased, there is a good chance that the person would still have a fair number of years left in his or her career. That could still affect their independence if they are hoping for some other type of public office appointment.
Senator Nolin: A longer term without renewability would be preferable.
Mr. Mendes: That is correct.
Senator Joyal: I would like to get your reaction to two points with respect to the question that we must address as a committee. The first has to do with the preamble of the bill. The second last "whereas'' in the preamble states that "by virtue of section 44 of the Constitution Act, 1982, Parliament may make laws to amend the Constitution of Canada in relation to the Senate.'' My first question centres on the meaning of section 44 of the Constitution Act, 1982, which states:
Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
Some experts that were heard at the special legislative committee last fall contended that we have to read section 44 literally, that is, to give to its meaning the substantive conclusion that you draw from the reading of it. Since section 44 says "subject to sections 41 and 42,'' those experts conclude that anything that is not in sections 41 or 42 is under the exclusive jurisdiction of the Parliament of Canada in relation to the Senate.
My problem with that conclusion stems from the fact that the court has already had an opportunity to interpret or give meaning to the words "the Constitution of Canada,'' including section 44 on amending, which it did in 1998 in Reference re Secession of Quebec. Of course, the first gesture of the court in that case was to read section 52, which defines the Constitution of Canada. Section 52(2) states:
The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
The court, when it had to interpret the Constitution of Canada, looked into the definition, but the court said that that was not enough, that there is more than what is stated in section 52(2). There are also the four underlying principles: federalism, democracy, the rule of law and protection of minority rights.
In other words, even though there was a definition of the Constitution of Canada, in the eight-year sessions later in the same patriation initiative, the court did not feel it was bound essentially by a textual reading of section 44.
My reasoning is the following: If the Supreme Court of Canada came to the conclusion that a textual reading of section 44 is not enough to define its scope, it would adopt a similar approach in defining what it means that the Parliament of Canada has power to make exclusive law in relation to the Parliament. In other words, the court might not feel totally bound by sections 41 and 42. The court might give to the power included in section 44 a different scope than a literal textual reading of it would give you as a conclusion.
Do you think this reasoning is legally sound, if I have to make a decision on what section 44 means, or is that not a reasonable interpretation of section 44?
Mr. Mendes: It is legally sound for a much simpler reason. Section 52 has the word "includes.'' That clearly indicates that the views of those so-called experts were wrong. In addition, the failure to address the Supreme Court of Canada's decisions in terms of parliamentary privilege having equal standing with the rest of the Constitution also negates those sorts of views. Therefore, my view is that a simplistic reading of section 44 is actually totally contrary, not only to the interpretation you have given including the simple inclusion of the word "includes,'' but also to decisions of the Supreme Court of Canada like New Brunswick Broadcasting Co. v. Nova Scotia and the Vaid decision. It is clear that that word in section 52 includes not only the Supreme Court of Canada decisions but also the four principles you mentioned from the Quebec Secession Reference case, which is directly involved not only in this bill but also in the other bill that was introduced in the other House, which includes democracy and federalism. If this is a precursor to the other attempted introduction of the bill, it is potentially a major violation of the principle of federalism, too.
In addition to the reasons you state, senator, I think the combination of the fact that section 52 contains the word "includes'' plus the Supreme Court of Canada decisions and the Quebec Secession Reference case indicates that that simplistic interpretation is wrong.
Senator Joyal: Let me try another question in relation to the interpretation of section 44. The last paragraph of the preamble of Bill S-4 states:
AND WHEREAS Parliament wishes to maintain the essential characteristic of the Senate within Canada's parliamentary democracy as a chamber of independent, sober second thought . . .
That wording stems directly from the ruling of the Supreme Court in 1980 in what we call the Senate Reference or the Upper House Reference. What I find difficult to understand from the testimony we got from the Department of Justice and the Privy Council Office witnesses that we heard last week is the following: They contend that section 44 gives to Parliament power to amend the Senate in some of its essential features.
We all agree that Bill S-4 will change something important in the Senate. Any primary school student will tell you that to go from potential unlimited terms of 45 years to limited terms of eight years is a difference of 37 years, and it is a lot. It does not mean that senators usually serve for 45 years. That has happened only once in Canadian history. The average tenure is much lower than the maximum potential tenure.
However, those witnesses contend that Parliament can reduce the term the way Parliament sees fit. A literal reading of section 44, the way they read it, means that not being in section 42 means you can do whatever you want. The problem with that reasoning is that it is contradicted by the last "whereas,'' which states textually the description of the Senate that the Supreme Court made in 1980, and by the testimony of their own witness, Mr. Newman, who is the senior adviser of the Department of Justice.
Senator Austin asked Mr. Newman the following question:
Second, on the question of at some point a reduction in the term of office might impair the functioning of the Senate, how do you determine that eight years is constitutional? Would one year be constitutional? If it would not be, then why eight years?
Here is Mr. Newman's answer:
Let me get to your second question, if I may, the point that the Supreme Court had said that, and I take it almost as a spectrum, at some point a reduction would or could compromise the effectiveness of the Senate as a chamber of sober second thought in the legislative process.
He said "would or could,'' so it is very conditional. We do not need to prove it, we just need to conclude reasonably that it could affect the effectiveness of the Senate as a chamber of sober second thought. The same expert witness said:
I will not stand on solicitor-client privilege. I believe I can say right now if any piece of legislation came forward and tried to reduce the tenure of senators to one year, it would not pass muster. That would obviously affect the nature of the Senate to that degree.
In other words, even though you read section 44 textually and say that Parliament can do whatever it wants with the tenure of senators because it is not in section 42, nevertheless there are limits to what Parliament can do. Then you ask the question: What are those limits? What are the parameters of those limits?
It seems that the parameters of those limits are what would or could compromise the effectiveness of the Senate as a chamber of sober second thought in the legislative process. How can you reconcile a reading that Parliament can do whatever it wants because it is not in section 44 with their same opinion that there are limits, and those limits are what could or would affect the effectiveness of the Senate?
Mr. Mendes: You know my answer; there is that logical inconsistency in that situation. That is the reason why the prevailing constitutional standard has been laid down by the Supreme Court of Canada in New Brunswick Broadcasting Co. v. Nova Scotia and the Vaid decision, which says that equal to the rest of the constitution is the parliamentary privilege of the Senate to preserve its essential powers to operate as a deliberative body of sober second thought. That would include the previous Supreme Court of Canada decision.
Anything that interferes with that is potentially unconstitutional; and any attempt to try and alter that has to be triggered by the general amending formula, which would then respect the principles in the Quebec Secession Reference case of federalism, democracy, the rule of law and respect for minorities.
Senator Stratton: Mr. Mendes, what I got from the thrust of your argument, from an academic standpoint, is that if you had the luxury of dealing in isolation with this issue, the process that you describe would be ideal. However, what we are dealing with here is a thing called practical politics.
The issue is that the public wants this chamber changed; that is pretty unanimous in the data that has been collected over the years and it just gets worse. The percentages keep climbing. What we are more afraid of is that rather than wanting to change the place, the attitude or desire may become just get rid of it. That is the worry, the practical concern that you have to have. If we believe in this chamber, as some of us do, then how do we go about practically changing it so that it becomes more accountable and more open and transparent to the public?
My view is that we have tried with Meech Lake to change this place; we tried in Charlottetown to change this place. Both attempts were dramatically unsuccessful. There was broad consultation in Charlottetown particularly, because it was a referendum in essence, and that failed.
Therefore, if we go to a broad consultation, you can see that the likelihood of its success is pretty remote, even though that is the ideal way to move, in your opinion, and in the opinion of some others. However, we are dealing with reality. The only way that seems to have the potential of working is incremental change. You do the first step, watch that and see how it proceeds and then do a second step.
My concern is that if we simply say we cannot limit the tenure of senators because it may or may not be unconstitutional, that would place this chamber in a position where the public attitude would likely be let us get rid of the place if we cannot change it. That is a practical worry we have to have, and you should have.
If you are not satisfied with the eight-year term, you have said 12 years and up would be better. At least that is something we can move forward with. That is your opinion; other professors yesterday had opinions that varied from nine and 10 to 12 years. There is a variance as to how moving it up from the eight years could work.
If we are not happy with the eight years, the Prime Minister has said to propose an option. However, we need something so we can move forward. I think it is essential that we move forward; otherwise, the opinion of the public will move toward abolition and I do not think we want that.
Mr. Mendes: Can I begin by saying, with respect, it is easy to dismiss serious constitutional concerns by saying it is academic and not practical. I should also say that I was deeply involved in the Meech Lake negotiations as an adviser to two of the governmental organizations involved and in Charlottetown, so I do know what went on in a practical matter. I remember the good work that Senator Rivest was involved in during that round.
I would suggest that actually Charlottetown provides an example of perhaps too hasty attempts at constitutional reform and perhaps putting too many things together, which ultimately puts asunder the goals of the government. I think it is all too easy to dismiss serious constitutional concerns by saying one is an academic reaction and it is not a practical one.
There was a serious attempt at Charlottetown to address the regional imbalances. It is a real pity to this day that we did not segment off the different reforms and do them sequentially as opposed to putting the whole thing together. I remember, again, Senator Rivest having a major part to play in that.
For that reason, it is possible, and Charlottetown proved it was possible, to have a more substantial attempt at reform that involves all the parties' confederation. It can, with the right approach, result in a much more comprehensive linking of regional redistribution of seats with a limited-term tenure. I think the people of Canada would much prefer that than potentially something that may lead us into constitutional chaos.
Senator Stratton: I respect your opinion when you say that it is not enough that it is academic. You have to marry the two. There has to be a solution somehow. I was not involved in the structuring of Charlottetown. I was involved deeply in my province with respect to trying to have it succeed. It literally fell off the rails because it became overly complicated.
We want to start out with a simple thesis, to reform the Senate. As they get into it, the provinces say: "What about this? What about that?''» The next thing you know, it becomes very complicated because of the demands of the provinces and, rightfully or wrongfully, adding that burden to the ultimate failure of the Charlottetown Agreement.
I think it is highly unlikely that Ontario will give up its seats again, as it did before. I expect you would agree with that.
You have stated clearly that eight years is insufficient because it would allow the Prime Minister to appoint the entire Senate. You have also stated that perhaps 12 years would work. There is always a degree of risk. In the 12-year situation, the potential is there to bring about change by shortening tenure and allowing us to move forward. Am I putting words into your mouth or is that what you have said?
Mr. Mendes: I would be much happier to have a limited term of 12 to 15 years if the bill in the other House were dropped. I feel that the two are linked. When you link the two, there is a potential undermining of the integrity of the constitutional framework of this country.
Senator Stratton: With respect to this bill, would you be satisfied with 12 to 15 years, accepting what you have said about the bill in the other House?
Mr. Mendes: I would feel much easier.
Senator Fraser: It is more of the same. We have to get this clear in our minds. We all know that in 1965 a retirement age was brought in lowering the terms of senators from life to age 75. No one has argued that that was not possible under section 91(1), and section 44 is held to be a successor to section 91(1). Would you be among those who would suggest we would be on constitutionally solid ground to lower the age of retirement from 75 to 74?
Mr. Mendes: You mean in the Senate?
Senator Fraser: Yes.
Mr. Mendes: The reason I think the Supreme Court decided the way it did on that particular time frame — and keep in mind that constitutions are never static; they evolve over time — is because even though the decision predated the New Brunswick Broadcasting Co. case and the Vaid decision, there was an intuitive sense that the reduction from life to 75 years would not interfere with the fundamental powers of the Senate as a deliberative body capable of sober second thought.
It is intriguing when you look at similar jurisdictions in other parts of the world, and in particular the mother Parliament, where the concern is fundamentally about how to retain an upper house that is separate from the imperatives of partisan politics that allows it to be that check, that sober second thought, that independent thought, that permits troublesome bills that should never see the light of day to have that second thought, and have an independent body of persons be able to act as that democratic check on partisan politics in the other House.
I think that is the reason why the court allowed the reduction from life to 75 years. It is a huge jump then from age 75 to eight years.
Senator Fraser: That is my second question. I will assume for the moment, then, that we would be on solid ground if all we were trying to do here was diminish the age from 75 to 74, that that would not necessarily affect the fundamental characteristics of the Senate.
I am trying to grapple with where the crossover point is. Everyone agrees we could not take the term down to one year and we will assume we could take it to age 74. Where does the crossover point come and how and what criteria do we use to determine at what point those fundamental characteristics of the Senate that you do obviously understand very well will be affected?
Mr. Mendes: It is an imprecise yardstick, but it has nevertheless been laid down by the Supreme Court of Canada. That is, what are the essential powers that the Senate absolutely needs to act as a deliberative body of sober second thought, which echoes Senator Joyal's view that the previous decision focuses on the nature of that sober second thought.
If you feel that eight years prevents that, and the court agrees with you, that is potentially an unconstitutional attempt to limit the terms. If, however, 12 to 15 years still allows that ability to conduct your functions as a deliberative body of sober second thought, maybe that could be constitutional. I am not the Supreme Court of Canada. There is a bigger chance 12 or 15 yeas would be within the parliamentary privileges of the Senate, but certainly not, in my view, eight years.
Senator Fraser: Are you not willing to give me any more criteria than the Supreme Court has already set out for us? I would like your best-guess guidance.
Mr. Mendes: As a lawyer, I have to adhere to the yardsticks of our supreme judicial authority in this country. Therefore, as they have done with the Quebec Secession Reference case — and I am sure they would do in this case — they have thrown the ball back in your court and said that ultimately you have to decide what you think is critical to your functions as a deliberative body of sober second thought.
Senator Fraser: Thank you, I guess.
[Translation]
Senator Rivest: I think you will agree that when the Canadian government decided to set a retirement age of 75 for senators, that did not affect the privileges of the Senate under the Constitution Act. In your presentation, you talk about the risks involved in mixing new senators, appointed for eight-year terms, with current senators. We have already been through that. When the retirement age of 75 was brought in, some senators were already older than that. What is the difference here?
[English]
Mr. Mendes: The time frame is shorter if you have actually reached the retirement age. I would be more interested in playing golf than anything else.
If someone is appointed at the age of 35 or 45, after an eight-year term there is a huge amount of career span left in that time frame. Even if — and this is perhaps trying to be more precise with Senator Fraser — you raised the limit to 12 or 15 years, there might still be a substantial period left after that of a career that would perhaps affect the independent sober second thought.
I threw out the 12 years, but I am not you. You have a better sense of what allows you to keep your essential function, despite belonging to different party caucuses, to have the ability to be that critical check on partisan politics and the product of partisan politics.
I have seen you in many instances co-operate across party lines and stop bills that should never see the light of day or at least amend them in such a fashion that they are more appropriate to our democratic legitimacy. For that reason, I believe you are the best judges of what allows you to keep yourself as that critical check on partisan politics coming from the other place.
[Translation]
Senator Nolin: I would like to look at the broader context beyond Bill S-4. Would you go so far as to say that partisan activity by senators affects that fundamental characteristic?
[English]
Mr. Mendes: I wish I could say it does not; however, depending on the times of any particular Western democracy, it does. The hope was the very creation of a non-elected upper house would provide that non-partisan check. It certainly was the theory behind the House of Lords, from whence the origins of the Senate of Canada came. We have seen instances in Britain of an ability by the upper house to act beyond partisan lines to basically act as a check on legislation that should be amended before it becomes law. Certainly that was the theory. The theory was to create an upper house that, even in a democracy, would be that check on unwise legislation coming from the lower house and would act together on a non-partisan basis.
[Translation]
Senator Nolin: In 1980, when the Supreme Court looked at the fundamental characteristics, it could not ignore the evolution and reality of the institution in the Canadian political context. That is why I am asking you this question. Does participation in partisan activities by members of the Senate affect this fundamental characteristic? As an institution, should we make a point of staying clear of partisan activity, perhaps, like the courts do?
[English]
Mr. Mendes: Under our Charter of Rights and Freedoms, I do not think you can prevent senators from being members of caucuses. No upper house anywhere in the world has tried to prevent that. However, I think the idea was that despite belonging to partisan caucuses and understanding the direction of your party or your caucus, you come into the upper house and see beyond the partisan for the best interests of the country and the democracy itself.
Senator Rivest: Does that mean that independence is only a matter of constitutionality?
[Translation]
Mr. Mendes: Senator Rivest, you have already demonstrated your capacity for independence.
[English]
The Deputy Chairman: Perhaps, Senator Rivest, we should start calling you a cross-bencher.
Senator Hays: Professor Mendes, it is always a pleasure to listen to you and to hear your good advice. I will focus on something that is bothering me, which perhaps has already been touched on but forgive me for being late for class.
The issue of powers in section 42 seems to me to be the most likely hook on which you think the Supreme Court of Canada in a reference would hang its hat if it were to find that this were a section 42 amendment, not a section 44 amendment, for various reasons, which I think, in summary, are that when read with Bill C-43 this is not to do with Senate terms but with an elected Senate and that it does not respect the principles of federalism, respect for minorities, or the rule of law powers, although I could be wrong.
The problem I have is that powers are clearly set out in the Constitution. The Senate has an absolute veto over all federal bills that come to it, and no bill becomes law unless it is passed by the Senate, the exception being money bills and so on.
What I hear you and others saying is that it is not the powers but the way the Senate exercises the powers that raises it to the level where, as Mr. Newman indicated and I think others agreed, it is not that simple. I do not know that it is categorical that the so-called experts, as they were referred to, said that the codification of powers in section 42 and section 44 was absolute. Certainly, Mr. Newman acknowledged, and it has been well documented in our testimony, both from witnesses and from questions, that there are circumstances where it is not that simple and the point is that this may be one of them.
Could you comment? I can understand powers as set out in the Constitution, but powers as they are exercised will be a difficult thing for the court to make a decision on, even on a purposeful approach to the question, taking into consideration the full body of evidence that has been before the two committees, and so on.
Could you comment on how the court might deal with that?
Mr. Mendes: I think you have zeroed in on one of the most critical points I am trying to make, which is that the definition of powers in section 42 has to be now looked at in the context of the two decisions by the Supreme Court of Canada and, indeed, the earlier decision that Senator Joyal mentioned, in terms of the extension of the powers of the Senate to include its fundamental parliamentary privileges. Therefore that is what adds on to the definition of powers, the way in which it is exercised and the way in which it is affected by ordinary legislation that may be attempted to be put through as an administrative matter for the Senate, which clearly it is not, for all the reasons that were mentioned in the questioning of my friend Warren Newman from the Justice Department.
I have looked at the transcript. Maybe I am missing something. This is what made me decide to come here and give my opinion. I did not see in the previous testimony that the definition of powers has in any way already been added onto by the decisions of the Supreme Court of Canada in the New Brunswick Broadcasting Co. decision and the Vaid decision. That becomes the critical issue which has not been determined to date, in my view.
Senator Hays: I have put this before. People have been unwilling to comment on it, but the Senate has, under section 44, an absolute veto. The Senate, if it wants to change the laws that relate to its privileges, can. I cannot imagine this not being put to the court, so I will put it to you.
It is for the Senate to decide whether or not this is a good bill. The Constitution reposes full power in the Senate. If the Senate did pass it and the matter was taken to the court saying that the Senate made a mistake, that the Senate should not have passed it because it impaired its powers, the argument it seems to me would be that it impaired its powers and it had full power to go one way or the other on this. Let us assume it passed the bill. Some respect has to be paid to that fact. As I say, no one has been prepared to comment on that, but let me try you.
Mr. Mendes: My major critical point is that we could be starting down a road that leads to constitutional chaos. As I said in my presentation, what if the Supreme Court of Canada were to declare such legislation unconstitutional? What would happen to the senators who have been appointed or if the other bill gets through and you have elected senators? That is the definition of constitutional chaos.
Going to an even more complex answer to your question, one of the things that people who govern this country have to keep in mind at every single opportunity they get to think about reform of our institutions is the very delicate interplay between the written words of the Constitution, the decisions of the Supreme Court of Canada and conventions. As we know, it profoundly affected the history of this country in terms of the repatriation of the Constitution of our country from Great Britain.
We should learn those lessons, and I am not sure we have. We have a complex Constitution in this country which requires not just a focus on the written text but also a focus on the decisions of the Supreme Court of Canada and, as important, whether custom has transformed into convention.
I would throw a question back to you: The Senate has traditionally said that even though it has the veto, it will not exercise it; has that custom turned from usage into convention? It is a delicate question and again, at the risk of being a typical lawyer, one I am ultimately throwing back into your court.
Senator Hays: I cannot imagine the court saying that the Senate has lost its veto because it has not used it, if that is what you are suggesting.
Mr. Mendes: No.
Senator Hays: We have the 7-50 formula — seven out of 10 provinces representing 50 per cent of the population — the five-region veto and a probable convention of a referendum. If the court says yes, this is questionable, the idea is that the government would go to the court and a year later we would say yes. To do something as straightforward, it seems to me, as setting mandates for senators would require several years to do and would put the federal government in a negotiating position with the provinces, which historically has also been a factor.
I am thinking that the court might take that into consideration. For instance, if this bill were a bill initiated in the Senate, as proposed, without Bill C-43 in existence, my question to Professor Magnet — he would not draw on it, but sometimes a cigar is just a cigar — was what would happen. Would the court say a government of the day might introduce a bill for a selective advisory process or something and it could be more than it appears to be, and then go into these fine issues of how powers are exercised and so on?
The point I am getting at is that we cannot be frozen totally in terms of change, including formal change, for instance, under section 44.
Mr. Mendes: As I discussed in my answer to Senator Stratton, I would be much happier if the other bill died, so that there were some ability to have the senators exercise your core functions as a deliberative body and come to a decision as to what the appropriate term is, which would allow you to continue your functions as a deliberative body of sober second thought. The fact that there is this other bill hanging out there tells me that when you put the two together, there is a possibility that in pith and substance the two could be regarded as unconstitutional.
Senator Hays: I agree with that. I think the two bills together are unconstitutional, although I should have a reasonably open mind to be convinced otherwise if we ever got Bill C-43, which I doubt. However, we could also look at Bill S-4 on its own, not as proposed but as amended.
Senator Bryden: I want to raise an issue that was raised by Professor Andrew Heard and that has not been extensively debated here. The issue is whether section 44 is a comprehensive list of the areas of amendment that could fall within section 44 but are expressly agreed not to, instead requiring the 7-50 amending formula in section 38.
Professor Heard pointed out that the old section 91(1) specifically listed, among amendments that Parliament acting alone may not make, "the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House.'' Then there are some exceptions.
However, this provision was not carried over into section 42 or indeed anywhere in the amending provisions of the 1982 Constitution. The five-year maximum life of the House is now set out in section 4 of the Charter, but as Professor Heard pointed out, there is nothing special about the fact that it is in the Charter in terms of the amending formula.
I quote Professor Heard:
If one were to take the argument literally that the only exceptions to the power in section 44 are those exceptions in sections 41 and 42, then Parliament would be free to amend any provision in the Constitution with respect to the House of Commons including, perhaps, the right to vote, and certainly the five-year limit in both the Charter and the 1867 act.
There is nothing special in it about the Charter in terms of the amending formula. It is not excluded or required to be amended in one fashion or another. If one took the argument that section 44 literally only has the exceptions applied in sections 41 and 42, then Parliament could do away with the five-year limit.
It could, in theory perhaps, do away with the right to vote and being candidates. No Supreme Court will accept that and that is precisely my point: They will read further context into the limits that are imposed in that literal reading of section 44.
Indeed, if you reversed what we are doing here, where we go from a 75-year term to an eight-year term, under the same logic, you could go from a four- or five-year term for MPs to a 75-year term for MPs. Would you comment on that?
Mr. Mendes: I agree. This goes back to the logical inconsistency of some of the opinions you have heard before you that ignore the fact that when you put all the sections together, section 44 with section 42 and the supremacy clause, which says that all parts of the Constitution are equal and therefore you cannot determine that one is inferior to another, it becomes clear that section 44 is subject to section 42.
Once you read section 42 and its reference to powers, we go back to Senator Hays' critical question that he asked. Traditionally, the powers referred are the right to review legislation and indeed the veto. However, the Supreme Court of Canada has added how those powers are exercised. A failure to understand that creates the logical inconsistencies that you have mentioned and that Senator Joyal and Senator Hays have also mentioned.
Senator Bryden: There have been many references to the fact that Bill S-4 is linked to Bill C-43, some type of electorate bill. Indeed, I think the Prime Minister has said that Bill S-4 is the first step and Bill C-43 is the second step in the process. When Professor Magnet was here, he did an analysis of the way he believes the Supreme Court will approach the question of whether this is constitutional. He used a couple of terms in asking what is the purpose of this bill, terms with which we are all familiar: What is the pith and substance of what is happening here? Because these two are linked, Professor Magnet believes that the court really has no option but to say: The pith and substance of this procedure, the two of them together certainly, is to make fundamental change to the Senate of Canada.
What is your reaction to that?
Mr. Mendes: I agree with my colleague, Joseph Magnet, but I would add an even more damning criticism, though I hate to use that expression. I cannot see anything in section 91 that gives the federal government the power to do this. There is nothing in that list of powers in the section that gives the federal government the right to pass legislation that effectively undermines the Constitution of Canada, other than the peace, order and good government clause, and it is surely not good government to undermine the Constitution of Canada.
Therefore, in addition to the pith and substance argument, my argument would be that I am not sure there is any jurisdictional authority on the part of the federal government to pass legislation that says that we can regulate and have an advisory federal election system but we do not have to adhere to it and that it could be up to the discretion of the Prime Minister to decide whether or not he actually abides by the outcome of those resolutions. I cannot see anything in the list of powers of the federal government that allows the federal government to do that, other than the peace, order and good government clause, which would be a misnomer if it were ever used for that.
Senator Bryden: Professor Magnet went one step further in opining about the approach the Supreme Court might take. The court will try to determine the real objective of this process, and he implied, if he did not exactly say, that it may very well be a process that will lead toward redistribution of Senate influence within the federation. I could not quite follow how that would come out, but the other day I was thinking about why this Prime Minister has not fulfilled his obligation to fill vacant Senate seats in the country. We have 13 or some, and we have another dozen coming up. We have whole territories with no representation, such as the Yukon Territory. We have a province with no cabinet minister. We could appoint a senator there, or he could have, but he did not.
There are two ways to solve your problem of why there are so few. I do not agree with you, by the way, that there are too many senators representing the small area of Atlantic Canada and there are too few in the big places of B.C. and Alberta; the rich guys need more and the poor guys have it taken away. My point is this: One of the ways to level the playing field is to reduce the number of senators we have by leaving some vacancies but filling the positions that become vacant in Alberta and in B.C. You end up with one senator for P.E.I., two or three from New Brunswick and Nova Scotia, but when one becomes vacant in B.C., you fill it immediately and keep theirs up to the top until there is probably what might be referred to as an equilibrium of ineffectiveness. That certainly could help bring this about. Have you any comment on that?
Mr. Mendes: Actually, I have thought about that, because there are many other positions in other parts of our fundamental constitutional framework that have gone unfilled. As I think you know, I am referring particularly to the judiciary of Canada. If that is indeed one of the motivations, it is so serious, in terms of trying to do indirectly what you cannot do directly, that a question could be raised as to whether you can have an unconstitutional act by omission in addition to a unconstitutional act by commission. That would be a very interesting reference to the Supreme Court of Canada, or indeed a province could refer it to their provincial appeal court. The Supreme Court of Canada in the Quebec Secession Reference case that Senator Joyal mentioned has given reinforcement to that by insisting that one of the fundamental, unwritten parts of the Constitution which has to be observed is the principles of democracy, federalism and the rule of law. If unconstitutional acts by omission are being planned, certainly it hits all three of them — federalism, democracy and the rule of law.
The Deputy Chairman: Thank you very much, Professor Mendes, for once again appearing before us and helping in our deliberations.
Honourable senators, our second participant today is Mr. Henry Brown. Mr. Brown is a partner, counsel and litigator in the Ottawa office in the advocacy department of the national law firm of Gowling Lafleur Henderson LLP. His practice has focused on constitutional, regulatory, administrative, government relations and public law.
Mr. Brown has appeared on numerous occasions before the Supreme Court of Canada, the Federal Court, and the courts of Ontario. In the Supreme Court of Canada, Mr. Brown routinely advises and acts as counsel in constitutional, civil and criminal appeals and applications for leave to appeal. We are lucky to have Mr. Brown with us today to guide us through his extensive and thorough examination of the bill before us.
We all have in front of us the lengthy brief that Mr. Brown presented to us. It is most interesting. There is a shorter brief of his remarks today, but it is available only in English. It is on the table up here for anyone who wants it.
Henry S. Brown, Q.C. Partner, Gowling Lafleur Henderson LLP: Senate counsel asked me to research and outline certain discussion points in connection with Bill S-4 concerning Parliament's legislative competence to enact Bill S-4, acting alone, that is, under section 44 of the Constitution Act 1867 as amended. The questions were fourfold.
First, subsection 91(1) of the Constitution Act, 1867, has been replaced by section 44 of the Constitution Act, 1982. Are the comments of the Supreme Court of Canada in Reference re Authority of Parliament in Relation to the Upper House, the Upper House Reference, still valid with respect to section 44? Second, assuming the scope of section 91(1) is same as the scope of section 44, does Bill S-4 exceed the exclusive jurisdiction of the federal Parliament in that it affects the "fundamental features or essential characteristics'' of the Senate? Third, if Bill S-4 is enacted and found to be unconstitutional, would it affect the legitimacy of federal legislation enacted pursuant to the unconstitutionally constituted Senate? Fourth, should Bill S-4 be referred to the Supreme Court of Canada to determine its constitutionality?
In providing the resulting research and discussion paper, which has been circulated, we had the benefit of reviewing the proceedings and reports of the Special Senate Committee on Senate Reform that reviewed Bill S-4 and we have incorporated some of the observations made there. Of course, there may be other factors to consider in connection with the constitutionality of Bill S-4. Our memorandum addresses the four specific points raised with us.
In answer to question one, our report concludes that it certainly appears that the comments of the Supreme Court of Canada in the Upper House Reference regarding subsection 91(1) are still valid with respect to section 44. Subsection 91(1) of the Constitution Act, 1867, no longer applies but, by its terms, it authorized Parliament acting alone to enact laws regarding the "amendment . . . of the Constitution of Canada.'' Section 91(1) was repealed and replaced by section 44 of the Constitution Act, 1982. Section 44 authorized Parliament, also acting alone, to enact laws "amending the Constitution of Canada'' in relation to the Senate.
While the Supreme Court of Canada in the Upper House Reference was asked whether section 91(1) permitted Parliament to abolish or alter the fundamental nature of the Senate, it appears the court's comments with respect to the function of Senate, particularly its fundamental features, remain valid and applicable to the scope of Parliament's power to enact laws in relation to the Senate pursuant to section 44. This is because both section 91(1) and section 44 are worded essentially identically, they both have the same subject matter and, most tellingly, because section 44 was introduced into Parliament less than two years after the court's opinion the Upper House Reference. The Upper House Reference, therefore, forms part of the historical — and recent historical — background to the enactment of section 44 and is likewise relevant in terms of construing the context and purpose of section 44.
In the Upper House Reference, the government of the day referred a package of Senate-related amendments to the Supreme Court of Canada for its opinion. The court's opinion is dated December 21, 1979, less than two years before the resolution leading to the Constitution Act, 1982, was introduced into Parliament on November 18, 1981. The court concluded that while section 91 did permit Parliament to make some changes to the Senate, it did not allow Parliament to make alterations affecting the fundamental features or essential characteristics granted to the Senate as a means of ensuring regional and provincial representation in the federal legislative process. Nor could Parliament amend the fundamental character of the Senate unilaterally. According to the court:
. . . while s. 91(1) would permit some changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional representation and provincial representation in the federal legislative process . . . In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada and s. 91(1) does not give that power.
That is found at page 78, and I wish to emphasize the word "affect.''
While the words of section 91(1) did not contain the limitation in the passage just referred to, the court implied and read into those words those limitations. This is what courts do in virtually every constitutional case.
Of direct relevance to this discussion paper, the court was also asked whether a change in the tenure of members of the Senate would affect the fundamental character of the Senate. That was question 2(d). The court declined to answer the question in the abstract but stated the following, and here I emphasize the words "some point'' and «impair»:
At some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as "the sober second thought in legislation'' . . . However, to answer this question we need to know what change of tenure is proposed.
That is found at page 76.
In addition, the Supreme Court of Canada specifically referred to the independence of the Senate as forming part of its fundamental features. The court said that the "intention was to make the Senate a thoroughly'' — and I emphasize the word "thoroughly'' — "independent body which would canvass dispassionately the measures of the House of Commons'' and that this was "accomplished by providing for the appointment of members of the Senate with tenure for life.'' This is found at page 77.
These are the values, then, that were protected by the Supreme Court of Canada as found in our Constitution. One, the Senate's thorough independence; two, the Senate's role as provider of sober second thought; and three, the Senate's role as a means of providing regional and provincial representation.
Prior to the introduction of Bill S-4, the scholarly opinion on the scope of section 44 confirmed that its scope was narrow, to be approached with caution, and was little changed from the scope of subsection 91(1).
I have reviewed contrary arguments presented to the special committee, the main one being that sections 41 and 42 of the 1982 amending procedures now say explicitly which changes to the Senate may not be enacted unilaterally by the Parliament of Canada. As a corollary, it is argued that any other aspect of the Senate may be amended by section 44, which is to be construed literally or grammatically.
This argument leaves unanswered the bigger question: How does one avoid the specific meaning given to the same words «the Constitution of Canada» by Canada's highest court just under two years before section 44 was introduced?
With respect, it makes little sense to argue that the words "the Constitution of Canada» contained serious implications for the independence, sober second thought and representative aspects and fundamental nature of the Senate in 1979 but became devoid of such meaning less than two years later. If those words imposed serious limitations on the power of Parliament to act unilaterally in 1979, which is undeniable, those same limitations must surely have been present and intended in 1981, and therefore they speak to us today.
Specifically, a literal interpretation of section 44 gives no relevance to the very specific injunction of the Supreme Court of Canada in the Upper House Reference that, "At some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as `the sober second thought in legislation.''' So, too, a literal interpretation leaves no place for the Senate's being thoroughly independent.
These views appear to be based on a conversion to the argument that the Upper House Reference was neither part of the context or purpose or historical background of the 1982 amendments and, in any event, has been entirely displaced by them. This is contrary to the facts of the matter and is difficult to accept.
Those who see a neat division in the amending formula and who have considered that the Upper House Reference is legally irrelevant should be asked what protection is now to be afforded to the Senate's sober second thought role and to its thorough independence? Presumably, their answer is that that role may be taken away by unilateral action under section 44. However, this response is at odds with the Supreme Court of Canada's decision in the Upper House Reference, heightening the risk of bill's invalidity.
An additional weakness in the argument that section 44 should be read literally lies in the fact that section 44 applies not only to amendments in relation to the Senate but also to amendments in relation to the House of Commons and the executive. Might it be heard that Parliament, acting alone, could strip the House of Commons of its democratic features and characteristics? If Parliament may take away the Senate's constitutionally protected thorough independence and the Senate's role as the provider of sober second thought, might not Parliament equally take away the democratic features of the House of Commons? If Parliament, acting unilaterally, may decrease the term of members of the Senate, may it not increase the terms of members of the House of Commons and by how much? Read literally, these are certainly possibilities. It is particularly noteworthy and of concern that neither section 41 nor section 42 expressly protects either the democratic features or characteristics of the House of Commons. There is no reference in sections 41 and 42 to either responsible government or representative government.
Further, given that the Constitution of Canada is now defined by section 52(2) to include the Constitution Act, 1867, it would appear that Parliament, if section 44 is construed literally or grammatically, might be permitted to unilaterally repeal the opening words of that statute, which assure Canadians, at least at the federal level, of a representative form of government, that is, to a Constitution similar in principle to that of the United Kingdom.
To state these possibilities is to throw into stark relief why the law courts do not generally read constitutional documents literally. Far too much is at stake. One need only ask these questions to see that grave difficulties surround construing section 44 literally without regard to legal precedent and without regard to the fundamental norms generally considered to be protected by our constitutional documents.
It is worth noting that the Constitution Act, 1982, could easily have been written more broadly if it was intended to authorize Parliament to amend the Constitution of Canada "in relation to fundamental features or characteristics of the Senate.'' Those words could have been added but that was not done.
The opening words of section 44 state that the powers in section 44 are subject to sections 41 and 42. These are words of statutory limitation. It may be argued, and I would argue, that there are not just one but two sets of constraints on section 44: first, the limited definition of the expression "the Constitution of Canada'' provided by the Supreme Court of Canada less than two years before the introduction of section 44; and second, those limitations provided by the opening words of section 44 itself. Each limitation must be respected. Unilateralism was rejected by the Supreme Court of Canada in 1979. There is little to suggest that unilateralism would prevail today.
Madam Chair, the discussion paper covers a wide range of issues. The law clerk asked that I focus on section 44, which I have done in my opening remarks by reference to the Upper House Reference. I will try to answer questions, and thank you for your patience.
Senator Nolin: My questions are more preliminary because I do not want to get into the substance of the matter. Was it the steering committee of the Senate Legal Committee that asked the law clerk to retain the services of Mr. Brown? How did Mr. Brown come to appear before the committee? I am concerned and wonder whether anyone can make such a request.
The Deputy Chairman: Mr. Brown was one name on the long list of witness names suggested to the committee. He was asked to appear before the committee as a witness and the steering committee agreed.
Senator Nolin: My concern is prior to that. Perhaps I could ask Mr. Brown. When did the law clerk contact you to retain your professional services and to explain the mandate that he was asking you to perform?
Mr. Brown: I was contacted by Senate counsel in the early summer last year and asked if I could provide a discussion paper on the questions that are reported in here. I did so.
Senator Nolin: Obviously, this committee did not ask the law clerk to do that.
The Deputy Chairman: No. Was it one of our colleagues who asked?
Senator Joyal: Yes.
Senator Nolin: Was it you, Senator Joyal?
Senator Joyal: Yes. I sent a written request to the law clerk to give an opinion on the bill as it was tabled at that time, before the committee started its hearings. Any senators can ask an opinion of the law clerk about a bill. The law clerk did not have the time or the expertise to proceed with this request and so chose from among all the lawyers who are normally the object of commission study. That is where the request comes from.
Senator Nolin: Mr. Brown, have you submitted your bill to Mr. Audcent?
Mr. Brown: Yes, I have. We submit accounts monthly.
Senator Nolin: We can find the details of that with the law clerk.
Mr. Brown: Yes.
Senator Joyal: Mr. Brown, in your presentation, when you discuss the issue of the literal interpretation of section 44, you limit yourself to a mere grammatical reading of section 44. However, would you not agree that any court interpreting section 44, which has not been the object of many decisions by the Supreme Court of Canada, would take into account also the intention of the framers? What was the intention of Parliament when section 44 was adopted by Parliament and, before being adopted, debated and studied by committee? Both Houses of Parliament normally have to pronounce on that proposed section. Is it not part of regular judicial interpretation that when a section of the Constitution has not been the object of extensive judicial interpretation the court will want to look into not only the pith and substance but also the intention of the framers? What did they have in mind?
Reading the Upper House Reference from 1980 tells us that the court went on at length and quoted Sir John A. Macdonald extensively and George Brown in the decision. The court quoted the extracts of speeches made at the time of Confederation in order to understand the purpose of the Senate and where the Senate of Canada originated.
If the Supreme Court were asked to give an interpretation to section 44, they might want to go back to the comments made by the framers in 1980, 1981 or 1982 regarding section 44.
Would they give as much weight to the interpretation of section 44 as the court gave in 1980 to the interpretation of the nature of the Senate and its role in the parliamentary structure of Canada?
Mr. Brown: The short answer is yes. A basic function of the court on examination of a constitutional document or a statute is to determine the meaning of the statute and its application to the facts at hand, and to do that, it is basic to ascertain the intention of the framers, the intention of the drafters and the intention of the legislators.
To do that, the court looks at the context and purpose of the statute. Statutes are to be construed, as the Supreme Court of Canada has said many times, particularly recently, contextually and purposefully, which means that one must look at the context and the purpose. In that connection, you are quite right that the Supreme Court of Canada, in the Upper House Reference, did go back. It is quite common, and in fact invariable, for the court, on constitutional construction, to go back to the speeches made at the time in the chamber and outside the chamber to try to inform themselves as to what was being intended.
It is, of course, ultimately a matter of what Parliament said. Its expressed intent is what ultimately will count, but to inform that, the context and purpose is carefully reviewed. I might say that that was done in the Upper House Reference. At page 66, the court specifically says that the beginning of the analysis of the proposals before it was to look at "historical background,'' which it then did. It took into account the speeches of Sir John A. Macdonald and George Brown and ultimately came to the conclusions that I quoted in my opening presentation.
Senator Joyal: The court could look into the speeches that were made surrounding section 44 when it was debated; and, of course, any documents from the Department of Justice that would have accompanied the draft resolution at the time would be part of the documentation or information that the court would want to go through to determine the intention of the framers. In other words, the court would probably receive such proof as being concurrent to the speeches that were made at the time to determine the scope of section 44.
Mr. Brown: Yes. As indicated in the previous answer, speeches in Parliament are certainly relevant and will always be looked to. Whether they are determinative is up to the court, but they inform the court as to the context, the history, the milieu in which it is drafted.
Legal opinions, if shared with Parliament, may, contemporaneously, also be relevant, but not necessarily conclusive. It is fair to say the court has seen legal opinions contemporaneous with legislation and decided that they were wrong. However, it is very relevant to the interpretation, if such documents are available, particularly if they were shared. So, too, would be the views of scholars at the time, which, as I have noted, were unanimous in the view that this was a narrow provision. The court would look to correspondence with perhaps the provinces. Because the amendment at that time had the approval of the provinces, the court would look at issues in the provincial debates to see what they had on their minds.
Ultimately it comes down to what was expressed. The context and purpose is very important, and certainly the courts do not proceed ahistorically, that is, without regard to what has gone past.
Senator Joyal: Let me be even more precise. When the Department of Justice tabled the draft resolution in 1980, the resolution that of course contains section 44 with the Charter, it published explanatory notes. In other words, there was a written text accompanying the draft resolution giving the purpose of each of the sections of the proposed resolution.
If there was a specific reference in that documentation, in the official documents of the Department of Justice, to the meaning and intent of section 44, that could be a source of information to which the court could give some weight.
Mr. Brown: It is more than could be; it would be given weight. Exactly how much weight would depend on all the other evidence. There was a time when parliamentary discussions were not admitted into a court of law, but we have long since passed that. We passed it probably first in the area of constitutional construction. It is essential in construing constitutional documents to ascertain, as best one can, what the legislators had in mind, what they saw as being addressed and their context and the purpose in which they were acting.
Senator Joyal: In other words, they could use the documents from the Department of Justice and put them together with the interventions that were made by the framers at the time during the committee that was studying the proposed resolution or in the House of Commons debates or in the Senate debates or in the provincial legislature or in the correspondence. Taken as a whole, those documents and interventions would comment or give nuance to the meaning of section 44, to try to understand the scope of section 44 when it was adopted by Parliament.
Mr. Brown: Absolutely.
Senator Joyal: Let me go on to a section of your long brief. On page 13 of your brief, in the second half of the second paragraph, you state:
It is noteworthy that two different tests are set out in Re Upper House. In the first, a change which merely "affects'' the fundamental features and characteristics of the Senate in certain respects is beyond section 44.
It does not need to nullify, merely affect. That is the first test you say exists. Then you continue:
In the second, a change which "impairs'' the functioning of the Senate as the provider of "sober second thought in legislation'' is beyond the reach of an amendment under section 44.
If I understand your reasoning, when we read Bill S-4, it limits the term of senators to eight years. There are two questions that we have to ask ourselves. The first is whether the change contemplated "merely affects the fundamental features» of the Senate. Again, "merely affects'' is light, if I can use a qualification. It does not mean that it changes the fundamental features or it negates the fundamental features. The second question is whether the change contemplated would impair the functioning of the Senate as sober second thought in legislation.
On what basis do you draw your conclusion that when you apply those two tests to Bill S-4 the bill does not meet them? Would the Supreme Court apply those tests?
Mr. Brown: Let me first put that comment in the proper context, or in the fuller context. In my opening presentation, I referred to and emphasized the words "impair'' and "affect'' in the two passages I quoted.
At page 76 of the Upper House Reference, the Supreme Court of Canada specifically directed itself to the tenure of senators. It said:
At some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as "the sober second thought in legislation».
The concept of impairment relates to that aspect of the Senate by which the Senate provides sober second thought in legislation. The Supreme Court of Canada is saying, firing a shot across the bow, not answering the question but setting the legal test for a future case, that on sober second thought, you are permitted to amend, but you may not go to the point of impairing sober second thought. In other words, some affecting of sober second thought is permitted, but impairment is not. There is a continuum.
On pages 77 and 78, the court talks about the Senate's independence. This is another aspect of the Senate. It is dealing with questions (e) and (iv). The court said:
In creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons. This was accomplished by providing for the appointment of members of the Senate with tenure for life. To make the Senate a wholly or partially elected body would affect a fundamental feature of that body. We would answer this sub-question in the negative.
I take from that quote that Parliament may not affect the thorough independence of the Senate by acting alone. That is what, in effect, the Supreme Court of Canada said.
It went on to say, in relation to the next question, at pages 77 and 78:
. . . while s. 91(1) would permit some changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional representation and provincial representation in the federal legislative process.
Like independence, one can argue from this that Parliament may not unilaterally go so far as to even affect the regional and provincial representation aspect of the Senate.
It concludes in that same paragraph on page 78:
In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada and s. 91(1) does not give that power.
So, stepping back, there is a continuum on the issue of sober second thought, a range, and then you hit the impairment of sober second thought. Parliament cannot act unilaterally. On the issue of independence, it cannot affect it at all; it must be independent.
Senator Joyal: I understand.
Senator Hays: Thank you for this excellent work and your comments.
I might say to the chairman, I know this document is dated March 21 and is fairly recent, but it would have been nice to have a copy of this long document and an opportunity to read it before hearing from Mr. Brown. Just in case we have more of these and they are available, that would be useful. It would have been nice to have it yesterday or the day before.
The Deputy Chairman: The delay in getting it was the translation problem. We got it as quickly as possible on Tuesday.
Senator Hays: Senator Fraser had her copy a few days ago. I did not, and I wish I had.
Mr. Brown, I have listened to you, and your opinion is that the Upper House Reference is applicable. That is clear. Going to the last pages of the long document you provided, I gather from the quotes on pages 50 and 51 that you believe that this matter should be referred to the Supreme Court before the Senate proceeds with its final deliberations. Is that right?
Mr. Brown: The best course of action would be to see this bill referred to the Supreme Court of Canada, because ultimately it alone can answer the question as to whether or not the bill is constitutional. Whether the bill is referred before it is passed or after it is passed, I have not put my mind to that question. It is at a stage where it could be referred to the court right now. The previous Senate reference did not involve even draft legislation.
If this proposed legislation were enacted and then challenged, the consequences could be serious. First individual senators might find that their appointments are not valid or that their eight-year term is in fact to age 75. There are also consequences to the law-making and the validity of law. The rule of law says that laws passed contrary to the Constitution must be struck down.
Senator Hays: In your view, that is a further rationale for this being referred as a preliminary matter before we finalize our determination of it.
What would the court's opinion be? You have not expressed an opinion on that. I think that is fine, because from what I have heard so far I do not believe this committee or the Senate would agree that the bill as proposed should go ahead. However, there are some who believe that fixed terms are a valuable improvement of the Senate. I have heard most often a 12-year, non-renewable term, but I have heard with some persuasion 15 years, particularly because the House of Lords seemed to be headed in that direction.
For the benefit of others on this committee, can we get a fairly definitive opinion from you — although I suspect asking for one now is not fair — on what the court's view would be? I will give you a reason for that. The reason is that we are legislators. We are not a court sitting here, and we all agree on that. However, we are given something to consider. There are those for and those against; and historically, we have been reluctant to delay consideration of a matter for court reference.
On the Senate, I think there has only been one in our history, which was the Upper House Reference, which is our subject here. You will appreciate that in the course of reform, and using section 44 and finding out how far Parliament can go with it, we need to know where we stand. It would be helpful to us to have an opinion — not just any opinion, perhaps, but yours, because you have spent a lot of time on this.
Historically, we have looked to you and your colleagues at Gowling for these opinions. Can you give us an opinion? I am not asking you for one now, though you may have one. Do you think in the end, knowing what you know now, you could be fairly definitive in saying yes, the court will find that this is not under section 44, but under section 42, or the contrary?
Mr. Brown: You are quite right, senator, that this is a discussion paper. It is pretty clear, though, that given the questions, which appear to be fundamental to the debate, the legislation would not fare well in the Supreme Court of Canada, in our view.
A full decision on this does require a record, which is the value of a reference. You go to a reference. Most of my work is before the court. What happens then is that notices are given. Several of the attorneys general, 13 of them, are entitled to appear as a right. Other intervenors may come. They could bring the provincial debates. They could bring other evidence as to what the context and purpose was; and perhaps the legal opinions, if they were publicly known, or perhaps even if they were privately known.
The opinion should be based on a record. The court would have a better record than we do at this point. We did look at the parliamentary debate, but not the committee debate at the time. There is very little debate on this.
The answer is that we could provide an opinion, subject to these other matters being disclosed, as to its validity. We could also consider the issue of what alternative tenure might be more likely to pass judicial scrutiny.
Senator Hays: Yes, you could, but you cannot right now. I understand that.
Mr. Brown: On the issue of what term, I did listen to the debate this morning. I have no opinion on it, but I would suggest that the analytical framework for the term would involve looking at those two aspects, that is to say, sober second thought may not be impaired. That is one thing. What does sober second thought mean? That is discussed in our paper.
Then independence is a second aspect, and that may not be affected. The Senate must come out at the end of the day as an independent institution. We look at aspects of that in the paper and then say, bringing the practicalities to bear, what is a term that would be sure to pass muster with the Supreme Court of Canada?
Senator Hays: A renewable term gives you pause in terms of its affecting the independence of the Senate. Is that correct?
Mr. Brown: What gives me pause is reducing the term from 45 years to eight. The potential term of a senator is 45 years, and to reduce that to eight, along with the other issues that we talk about, gives me pause. The aspect of independence and the aspect of sober second thought both seem to be negatively affected by a short term.
Regarding a longer term, as the Supreme Court of Canada said, you may amend the Constitution to deal with the tenure providing you do not impair sober second thought. There is a point. At some point you can do it, but at some point you cannot.
Senator Hays: It is a ladder — eight years, 10, 12, 16, 20 years and so on. I am thinking you could provide us with a view of that ladder, could indicate for instance that this is very safe and this is more risky in terms of the court. I think that would be helpful.
My last question concerns the preamble of the Constitution that was quoted in the Upper House Reference and whether the relevance of the Westminster Parliament today would be put into question in terms of the court's consideration more than Westminster was in 1867.
The reason I ask is that we have paid a lot of attention in this committee to the evolving House of Lords. Many changes have occurred there. The U.K.'s constitutional hurdles are much less than ours, given that they are not a federation.
In any event, which is more relevant, the Lords of 1867 or the Lords of 2007, in terms of what you think the court would have in mind, given the reliance in the Upper House Reference on the words of the preamble?
Mr. Brown: Clearly, the Upper House Reference tells us that what they had in mind was creating a body of sober second thought, in the words of our Prime Minister, and a body that was to be independent. It was also to have these regional and provincial representative aspects.
Is that closer to the Lords of 1867 or the Lords of 2007? I would like to dodge the question and say that we have our own. This is an indigenous document, which we debated as a nation some time ago, and the Supreme Court of Canada has informed us as to what was intended, or at least aspects of it. The reference in 1979 was quite comprehensive in terms of the shopping list of proposed changes and the areas discussed by the Supreme Court of Canada.
While we do have, as a starting point, a Constitution similar in principle to the United Kingdom, my suggestion is that, in answer, the court would revert to what we ourselves said about it more than looking at what the House of Lords was like. I think they will do that for "small p'' political reasons, for optical reasons. Of course, what the House of Lords was in 1867 is relevant.
Senator Bryden: This is very helpful. It is useful to have you boil it down into this many pages instead of more pages at this stage.
My concern is the attempt that is being made by the bill to change the tenure of senators without the involvement of the provinces. That is basically what is here. In relation to that, I would like to refer to the sentence in the quotation from the Upper House Reference that you left out. I know why you left it out — you had to leave something out. It reads:
...while s. 91(1) would permit some changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional representation and provincial representation in the federal legislation process.
I believe that too many of us in reading the last part of that sentence direct our attention to representing our piece of the pie from our region. For example, when the budget gets divided up, does my province, New Brunswick, gets its share? I do not believe that that is what that sentence means. Rather, do we get an opportunity to deal with the federal legislative process to represent the interests of my province, my region, in what is happening legislatively in the Parliament of Canada? That is what I think it means. What is your reading of that? Am I correct?
Mr. Brown: I am not sure I completely understand the question. We have these institutions. We have the Senate and it has a constitutionally protected role as a means of ensuring regional and provincial representation in the federal legislative process. Interestingly enough, those words are echoed in both sections 41 and 42. They have been moved over.
Senator Bryden: It is not a matter of the number of bodies in a given region that are able to say, We want fair treatment in relation to the budget that just came down. Quebec got more than us. That is not issue. It is to have a fundamental and meaningful role in the process of creating the laws of the federation.
Mr. Brown: Yes. Certainly in that respect the Senate is very different from the House of Commons, because it represents the regions with a much stronger voice than the House of Commons affords as presently constituted and, therefore, provides that regional input to legislation in respect of which it has been noted there is an absolute veto. It is a critical feature of the Senate that it have this regional and provincial representative role. At least, smaller areas have a stronger voice, relatively speaking, here than they do in the other House. The court has said that Parliament acting alone may not affect that aspect of the Senate's function.
Senator Bryden: This is the piece that you left out of your quotation:
The character of the Senate was determined by the British Parliament in response to the proposals submitted by the three provinces in order to meet the requirement of the proposed federal system.
This grew out of negotiations between the three provinces and then, having got a conclusion on that, the British Parliament sanctioned that deal, and that is what gave rise to the federation we have, including the Senate, because it goes on to read:
It was that Senate, created by the Act, to which a legislative role was given by s. 91.
It was part of the deal.
What little money I have made I made negotiating contracts. When you make a deal, if you decide to change the deal and the parties are still alive, you had better go back and negotiate with the parties; give the parties an opportunity to have a voice. Would that not be denied if we tried to proceed under section 44 alone?
Senator Hays: That is with a shortened mandate?
Senator Bryden: On tenure, yes.
Mr. Brown: I will preface my answer by saying I am glad you note the passage because it in part answers the question Senator Hays asked and confirms that we were not simply bringing into this country a House of Lords and House of Commons on the English model. Our ancestors designed this themselves. The Parliament of Britain responded to what we asked for. Certainly, you are correct, it was a negotiated arrangement, Confederation debates, Charlottetown debates, et cetera. There were debates across the country. First off, it is ours. I have always had a problem with comparing it to the House of Commons or House of Lords of 1867. This is sui generis; this is unique; this is ours.
Is the regional representation aspect of the Senate affected by Bill S-4? Our view is that the regional aspect is not impacted by Bill S-4 — certainly not anywhere near to the extent that the Senate's sober second thought aspect and independence aspect are. However, the conclusion is the same. Because the bill most likely offends the sober second thought aspect and the independence aspect, it is beyond the scope of section 44 and must therefore be proceeded with under section 38, and may be proceeded with under section 38 with provincial consent. There is no difficulty in passing this bill under section 38; at least, none that we have identified.
Senator Bryden: There is no constitutional difficulty with it.
Mr. Brown: That is right; there are no constitutional difficulties.
Senator Bryden: There may be difficulty otherwise. I do not think you would have any difficulty in getting people around this table to agree to that. My problem has always been that it is not a section 44 amendment or bill; it is a section 38 bill, primarily because it was a negotiated deal. People who made the deal should have the right to say something about it.
Mr. Brown: To be fair to that view, part of the negotiated deal was that there would be sober second thought, a substantial role that could not be impaired, and that this institution would be independent. Those were part of the negotiations.
Senator Bryden: I have one other question. There was a discussion at one of our other hearings; I do not remember which one. A comparison was made between the independence of senators in the Senate in its views and the same requirement for Supreme Court justices. I believe the terminology "thoroughly independent'' is the same in both instances. Are you in a position to comment on that?
Mr. Brown: Yes. The larger paper discusses what independence means and it does so not in the context of an independent Senate, because we have very little to go on except that Parliament may not unilaterally amend the independence aspect of the Senate, but the Supreme Court has on many occasions looked at the independence of the judiciary, and that is tested on a reasonable approach. The test was set down 22 years ago in Valente v. the Queen, where independence is tested by what may be reasonably perceived as the essentials of security of tenure. That is the analysis that would have to be undertaken in looking at whether Bill S-4 affects the independence of the Senate. We think that discussion could be informed by what the Supreme Court of Canada has said independence means generally, and that is what may be reasonably perceived as the essentials of security of tenure. Those must be present or the institution is not independent.
Senator Bryden: We could learn from taking that approach, the one used in the Supreme Court, and it relates to the security of tenure. For Supreme Court justices, initially, like the Senate, it was tenure for life and then it became tenure to age 75 for the Supreme Court and tenure to age 75 for senators. Now, if a government can change the tenure for senators from age 75 to eight years, does that put the government in a position then to also change tenure for Supreme Court justices from age 75 to some term appointment?
Mr. Brown: As a preface to the answer I would note first that it is interesting that the amendment to change a lifetime appointment of judges was made in 1960 and it was not done under section 91(1). It was not done by Parliament acting alone. It was done by the British Parliament at the request of Canada. The 1965 reforms with respect to Senate tenure were implemented unilaterally. That is the first background point.
Second, the analogies are not perfect, though one may inform the other, because of the functional differences between the Senate and the judges. That said, there is a core. At the root of both is independence. The Supreme Court of Canada was asked to say, "Well, you must be able to serve until you are 75 or you are not independent.'' It said that that is not the right test, there is nothing to that; rather, you have to take this broader analysis of what may be reasonably perceived as the essentials of security and look at a whole number of factors to determine whether the institution is actually independent. That is the sort of analysis that would have to be taken with respect to each of the two institutions in its context.
Senator Joyal: I just want to point out quickly that the Supreme Court of Canada is entrenched in section 41: if you want to amend the composition of the Supreme Court of Canada, it is unanimity; it is section 41(d) of the Constitution. For the rest of the Supreme Court of Canada, it is paragraph 42(1)(d):
An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):
(d) subject to paragraph 41(d), the Supreme Court of Canada.
In other words, if we want to amend something substantial in the Supreme Court, its composition is unanimity and the other matters, section 42(1)(d), which requires the 7-50. In other words, the principle of independence of the Supreme Court to the minimum is entrenched by section 42(1)(d). In other words, it is not up to the Parliament of Canada to change unilaterally a substantial element of the Supreme Court of Canada the way that the draft sections 41 and 42 at the time were discussed, because you will remember that it is a very substantial change from what it was before to the Constitution of Canada.
Mr. Brown: Quite correct, and section 44 makes no reference to the Supreme Court of Canada, only to the executive government, the Senate and the House of Commons.
Senator Hays: I have been making a point with most witnesses, which is the role of Parliament and in particular the role of the Senate. We are considering this mostly as it is before us. However, as an independent legislative body making independent judgments, it is possible, and in fact I hope probable, that what we are talking about is not what we will end up with, because we have a discretion, we have an independent power that we exercise independently to change something that we think should be changed, provided we can agree on what those changes are.
My own feeling is that that has been very relevant to this issue. Under section 44, the Senate has the same powers it had in 1867 and it has the same role that it had in 1867 to do what is the best for Canada using all of the powers that it has independently.
It is easy to characterize this as an initiative of the government of the day and associate it with the government of the day as good or bad for partisan or other reasons, but when it comes to a final decision of a legislative body, that body decides independently. It is important to me that this is an area where the Senate has full powers and not the diminished powers that arose from the 1982 changes, where such things as reform of the Senate are for the most part left to the premiers and the legislative assemblies of the provinces, the House of Commons, which has the veto, and the government of the day. My own experience as a senator is that that particular group of decision makers is often not well-informed about nor do they have a real sense of the legislative body that we around this table are part of. That is why I am anxious to see section 44 robust and something that the Senate can use to have its full say in things. I am not looking for ways to give it to the premiers or the Prime Minister who have these partisan powers and so on. I am looking for ways for the independent Senate to have as large a role as possible in changes that affect it.
Could you comment on how that is factored into your opinion?
Mr. Brown: The court would certainly consider the fact that the Senate had approved the legislation and might afford some deference to that component of the entire process. It is not for the Senate to amend the Constitution. It is not for the House of Commons to decide what the Constitution means. Ultimately, it is for the Supreme Court of Canada, and while it will look to Senate consent as relevant, the Senate's decision must still be tested against the harder limitations set in the Upper House Reference.
The Deputy Chairman: Thank you very much for appearing before us. Your opinions have been valuable. Particularly your longer brief is great reading and we will consider it fully.
The committee adjourned.