Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence for April 17, 2008
OTTAWA, Thursday, April 17, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-224, An Act to amend the Parliament of Canada Act (vacancies), met this day at 10:50 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Colleagues, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs, which is commencing its study of Bill S-224. This is a private senator's bill presented by Senator Moore. As the sponsor of the bill, he will be our first witness this morning.
Welcome, Senator Moore. You are no stranger to this committee, but perhaps this is a new capacity for you.
Hon. Wilfred P. Moore, sponsor of the bill: Yes, it is a very unusual capacity for me. Thank you, chair and members of the committee, for inviting me here this morning.
Senators, I will try to be brief. Under the existing law, the Prime Minister exercises broad discretion in respect of parliamentary vacancies. This discretion serves no legitimate purpose and is susceptible to abuse. In addition, the discretion of the Prime Minister is at odds with the notion of a properly functioning Parliament that is free from executive influence. Finally, the discretion interferes with the right of every Canadian to representation in Parliament by allowing the Prime Minister to delay or suspend that right selectively and, in the case of the Senate, indefinitely.
Canada is a mature democracy, and it is time we removed the Prime Minister's needless discretion in the area of filling vacancies in Parliament.
As you know, there are already provisions in the Parliament of Canada Act governing vacancies in the House of Commons. Generally speaking, by-elections must be called within six months of a vacancy. My bill would not alter those provisions. In fact, I am proposing a similar limitation on Senate vacancies.
The problem Bill S-224 seeks to address with respect to the House of Commons is the fact that a prime minister can be selective in calling by-elections. The Prime Minister can call a by-election within hours of one vacancy if he thinks his party will win the seat. Conversely, another seat that might have become vacant months earlier can be left to languish, contrary to the democratic rights of Canadians living in that riding who are without representation in the House of Commons.
Bill S-224 would bring an end to the selective calling of by-elections. It maintains the six-month window but would require by-elections to be called in the sequence in which vacancies occurred. Prime ministers would no longer be able to call a by-election in one seat while electing another that has been vacant longer.
Honourable senators, I do not want to take too long in my presentation. I outlined in my speech at second reading the most recent history in regard to the House of Commons vacancies in the current Parliament.
I will not elaborate those details here but, suffice it to say, we had some fairly extreme examples of by-elections being called within days of a vacancy while Canadians in other ridings went almost nine months without a representative. In a mature democracy such as ours, there is no reason the executive branch should be capable of such manipulations.
Let me turn to Senate vacancies. The legal obligation to fill Senate vacancies is clearly stated in the Constitution Act, 1867. The current Prime Minister chooses to disregard the Constitution and has left some seats vacant for more than two years. He has even gone so far as to say that he does not intend to fill vacancies.
I know that the current Prime Minister is not the first to let vacancies pile up. As others have pointed out, there are many examples in the past of seats having been left vacant for far too long. However, I think the current Prime Minister is the first to state openly as a matter of policy that he does not intend to fill vacancies. In any case, I do not see examples of past neglect as a reason for failing to act now.
Let me be very clear. In my view, the Constitution requires Senate vacancies to be filled as soon as possible. Obviously, the government disagrees with me. I introduced Bill S-224 to clarify the law and remove any doubt. My starting point was the provision in the Parliament of Canada Act that establishes an effective time limit on vacancies in the House of Commons.
Bill S-224 would add a similar provision for the Senate. In a sense, Bill S-224 defines the constitutional obligation to fill Senate vacancies by limiting the Prime Minister's discretion to six months.
With respect to Senate vacancies, we all know just how grave the situation is. The Senate is currently operating with 14 vacancies. There will be 3 more retirements this year. Next year, there will be 12 additional retirements. We also have to take into account the anticipated resignation of the Minister of Public Works, who has declared his intention to run for a seat in the House of Commons in the general election that must be called no later than next fall. By the end of 2009, if this Prime Minister persists in his stance, the Senate would have at least 30 vacancies, not counting possible resignations or, heaven forbid, deaths in office.
In conclusion, honourable senators, Bill S-224 is not about Senate reform. It is about ensuring adequate and timely representation for Canadians in both Houses of Parliament and removing the Prime Minister's ability to interfere with that. This issue needs to be addressed, regardless of what happens to Mr. Harper's Senate reform initiatives.
Bill S-224 seeks to remedy one of the many ways in which an overly-powerful Prime Minister's Office distorts the proper functioning of a constitutionally-balanced, responsible government in the parliamentary tradition of Westminster.
In addition to ensuring proper balance among constitutional institutions, the bill also serves the notion that representation in Parliament is a fundamental right that Canadians enjoy under the Constitution. It is not for a prime minister to interfere with that right for partisan purposes.
The current law gives prime ministers too much discretion. The selective filling of vacancies in Parliament is indefensible on any principled ground, and we should put a stop to it once and for all.
The Chair: Thank you very much, Senator Moore.
Senator Andreychuk?
Senator Andreychuk: I will wait.
The Chair: We usually give the government — the party other than the party of the chair in other words — the first crack.
Senator Di Nino?
Senator Di Nino: I will be happy to commence. We said we would be easy on you. I am not sure I can keep that promise. I am just joking.
The first comment I would like to make is not unusual and not rare. I sow this, respectfully, as a bit of mischief-making more than trying to improve the situation.
Do you honestly believe that this legislation will improve the Senate and deal with some of the very difficult problems of the institution itself? How do you see that happening?
Senator Moore: This bill deals only with the filling of vacancies in the Senate. As you well know, senator, your party, in particular, could certainly use more members to fulfill your responsibilities.
Senator Di Nino: I agree with you. Some of you could come over.
Senator Moore: Well, I will be a little easy on you.
It is clear that your party could use more senators to fulfill your committee responsibilities and other work that you have to do within the Senate.
By putting a cap on the period of vacancy and ensuring that vacancies are filled within six months, we would see some continuity. These vacancies would be filled, and the Senate would work properly as it is intended to do under the Constitution.
Senator Di Nino: You quoted the Prime Minister as saying that he will not fill Senate seats.
Senator Moore: Yes, I did.
Senator Di Nino: That is not quite correct. He has said that he wants to fill Senate seats — as a matter of fact, there is legislation in the works with regard to this — but he wants to do it through a consultation process so that senators will be elected by the provinces, and he would appoint those chosen by the people of the provinces.
Therefore, it is not correct to say that the Prime Minister has said he will not fill Senate seats. He would like to fill Senate seats in what is, in his opinion, a more democratic way than the current practice, that being through the choices made by the people of the provinces to whom these senators would be responsible and would represent.
Would you not at least agree with me that he did not say that he would not fill vacant seats?
Senator Moore: That legislation may or may not come to fruition. I am dealing with the law of the land as it now stands, and he has indicated that he is not prepared to fill Senate vacancies under the current provision of the Constitution.
Senator Di Nino: If we could expedite the passage of that bill —
Senator Moore: Of this bill, absolutely.
Senator Di Nino: No, the bill that the Prime Minister has proposed to consult the people.
Senator Stratton: Would you be in favour of that?
Senator Di Nino: We could fill the vacancies in that manner.
The Chair: That is outside this committee's present study.
Senator Di Nino: I defer to those who have more knowledge on these matters than I, but I understand that convention is an important part of how we operate our parliamentary institutions.
For a long time various prime ministers of all political stripes have chosen not to make appointments to the Senate, for a variety of reasons. This is nothing unusual; it happens from time to time. Would you agree with that?
Senator Moore: Yes, that is the fact, but it does not make it right.
I say that all those who did that were impinging on the rights of Canadians to have proper and timely representation in the both Houses of Parliament.
Senator Di Nino: That is fair enough. You have your opinion.
Senator Moore: It has happened, absolutely. Liberal and Progressive Conservative prime ministers have done that. That does not make it right and does not mean we should not address it today.
Senator Joyal: Can a prime minister refuse to exercise the convention of recommending candidates to the Governor General to the point where all seats in the Senate would become vacant? Going a step further, we would then be in breach of the section of the Constitution that provides that legislation is enacted by the concurrent consent and acceptance of both Houses of Parliament.
Senator Moore: Exactly.
Senator Joyal: That is taking it to the absurd.
The Constitution is pretty clear. Section 91 reads as follows:
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada . . . .
Section 91 requires the consent of the House of Commons and the consent of the Senate.
Senator Moore: Yes.
Senator Joyal: To express a consent, there has to be a vote, a voice.
Senator Moore: Exactly.
Senator Joyal: The voice comes from the people appointed to the Senate.
To rephrase my question, would it be "constitutional" for a prime minister not to exercise the power under the Constitution to recommend appointments to the point that the Senate would no longer be in the position to express consent, thus making the legislative process moot?
Senator Moore: I am not a constitutional expert but, having read this section, it is clear to me that it would be a violation of or contrary to the Constitution of the country for the prime minister not to fill the vacancies.
You have taken it to the extreme. The regions have to be represented.
Senator Joyal: You take it a step further.
Senator Moore: If the regions are not represented, the chamber will not function as it is designed to do under the Constitution. We will not hear the voices and will be unable to get the consent required to move bills through to receive Royal Assent from the Crown. It is an integral part to the way the country functions.
Senator Joyal: I will take this to another dimension. The preamble to the Constitution says the following:
Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:
The Supreme Court, in the Canada labour case in 1937, clearly stated that democratic debate is enshrined in the Constitution. By "democratic debate" we mean a proposal, a counterproposal, an argument, a counterargument, and so on, and then a vote. The Supreme Court of Canada has been very clear that this is enshrined in the Constitution.
If there is a depletion of membership in the Senate, how can the democratic principle function if there is only one party left?
Senator Moore: It cannot function.
Senator Joyal: In other words, who will make the counterarguments to government proposals?
Senator Moore: Exactly. There would be no other party to express the other side of the debate. In the final analysis, there is no Senate functioning to provide the consent necessary for legislation to be advanced and, in the interim, there is no one there looking after the regions or the minorities, which is a key function of the Senate of Canada.
Senator Joyal: You take it to another dimension, which is the protection of minority rights.
Senator Andreychuk: The discussion has been that it would leave only one party left, so where would the democratic voice be or the opposition to the government. Where does our structure recognizes parties in the Senate? We have, by our rules, enshrined a leader and an opposition leader but, as I understand it, and I will go back and review this, parties were not enshrined in any way. It is how we have chosen to function. We could, today, remove all of our rules and all sit as independents, and there would still be a functioning Senate.
Senator Moore: I am not sure that is entirely accurate. I do not think we came by the implementation and use of parties. You have to go back to the Constitution, similar in principle to that of the United Kingdom. That is where we got the idea. In Nova Scotia, when we started the first seat of responsible government, it was modelled on the system in the United Kingdom that existed at that time, and that has persevered over the years.
Senator Murray: Excuse me, but in 1867 I believe it is true to say that the first nominees to the Senate were distributed between the two parties then in existence. I think the Conservatives were given the right to nominate a certain number, and the other party, whatever it was called at the time, was also given the right to nominate a certain number of senators.
Senator Andreychuk: By convention.
The Chair: That is the way it is done in the United Kingdom, even today.
Senator Joyal, you were asking about minorities.
Senator Joyal: I want to take it to another level. In the succession reference, the Supreme Court clearly stated that there are four fundamental principles enshrined in the Constitution. There is constitutionalism and the rule of law; there is democracy in reference to the decision I mentioned earlier in the preamble to the Constitution; there is federalism; and then there is protection of minority rights. Protection of minority rights is a constitutional principle, according to the Supreme Court of Canada.
The protection of minority rights is enshrined in the Senate structure by the distribution of seats. As you know, the distribution of seats in the Senate is not on the basis of representation by population, as it is in the House of Commons. In other words, smaller provinces are over-represented in the Senate, and some provinces are not represented well enough in the Senate. Our colleague, Senator Murray, introduced a motion that had some merit in terms of rebalancing the regional representation in the Senate. The representation of minorities in the Senate is through the regional structure of representation in the Senate.
If regions where minorities are concentrated are not represented in the Senate because of depletion, are we not in breach of another constitutional principle, which is the protection of minority rights and their voice in the legislative process as it is structured in the present Constitution?
Senator Moore: I think we are; I said that earlier. The Senate, in the system of government we have today, is the one institution where opportunity is available to ensure that minorities have a representative to speak for them in the backup chamber that governs the country. There is an opportunity to put people in the Senate who represent the various minority groups from all regions. To not do that, to not fill these vacancies, is absolutely irresponsible and is contrary to the Constitution.
Senator Joyal: If it were the case that the Senate was depleted of its membership, what is the constitutional remedy?
Senator Moore: What is the constitutional remedy?
Senator Joyal: Yes. How can we force a prime minister to make recommendations to the Governor General to appoint senators to a level such that those principles could be satisfied?
Senator Stratton: They should be elected.
Senator Moore: That is a good question. The ultimate authority is the Governor General. Convention has been for the prime minister to advise her. If he or she does not advise the Governor General, the Governor General still has responsibility, under the Constitution, to fill the vacancies.
Senator Joyal: That is under section 24 of the Constitution.
Senator Moore: The Governor General is the ultimate authority. I would suggest that it would be incumbent upon the person occupying the office of Governor General to use whatever authorities are available in that office to make the appointments.
If there is no advice given ever, there is nothing in the Constitution that says the Governor General is relieved from making an appointment because he or she has not received advice from someone. The responsibility still remains under the Constitution. That is the ultimate guarantee that the Senate would not be allowed to wither away in the supposition that you proposed.
Senator Joyal: In other words, in your opinion, one of the options would be for the Governor General to breach the convention and to make appointments to the Senate, and face the political price for it.
Senator Moore: Yes, that is correct.
Senator Stratton: Welcome, Senator Moore. This is an interesting debate. You have brought forward quite an interesting proposal. Do you believe in electing senators?
Senator Moore: Do I believe in electing senators?
Senator Stratton: Yes.
Senator Moore: That depends on a lot of things.
Senator Stratton: You said "a lot of things." Can you name one or two?
Senator Moore: I do not want to get into a protracted debate about this. You are talking about Senate reform here. One would have to reform the whole institution that governs the country. It would require looking at Parliament, the House of Commons and the Senate. It is not a simple thing.
Senator Stratton: Alberta does it today. We have a member in the chamber, right now, who was elected in Alberta. He is there.
Senator Moore: Yes, he is there, but not under any law of the Government of Canada.
Senator Stratton: It is a law of Alberta.
Senator Moore: It is intra vires Alberta, and that is it. He did not have to be appointed. He could have been ignored.
Senator Stratton: I would be surprised if a prime minister would do that.
I am concerned about your talk about the power of the prime minister. It really is of some concern to all of us. In over four Parliaments, I put forward a bill on the appointment of senators through a different process. The process I described was that there would be a select committee of four former parliamentarians, who were Privy Councillors, or five Privy Councillors, who would put an advertisement in the paper for the position of senator in a particular region, for example, Nova Scotia. The citizens of that province could apply. There would be a selection process and a list of four or five names chosen by that select committee. Those four or five names would be reviewed by the prime minister and the premier of the province.
In part, that takes the power away from the prime minister.
Why would you not want to include that as a part of this bill to reduce the power of the prime minister? Perhaps you have not thought of it, but that seems to be a logical step as well, to make the process at least more democratic in the sense that anyone in that province could apply. The selected list would be discussed and the candidate chosen between the premier of the province and the prime minister. That would be a logical next step to take with your bill. Would you agree with that?
Senator Moore: That, again, is another type of Senate reform. I did not prepare the bill thinking of various suppositions or possible reforms of the Senate of Canada or the House of Commons of Canada. I approached the bill on the basis of the law that is in place now, trying to improve it and improve the representation in the law that exists now.
Senator Stratton: I understand and appreciate that. I would like someone on your side to put forward the bill that I used to put forward, because, with your majority, we could actually get this bill through. I could not even get it into committee for study when I put it forward.
At any rate, there will be 29 vacancies by the end of 2009. It would be nice if some of them were Conservative — such as all 29.
Senator Joyal: Why do you not introduce your bill, Senator Stratton?
Senator Stratton: It would not go through with you chaps in the driver's seat when you were in government. I do not see why it would go through now.
Senator Joyal: Sometimes wisdom takes time to soften people's minds.
The Chair: May I observe, Senator Stratton, that this committee has not usually had the luxury that it has in this session of being able to study a large number of senators' private member's bills because we have not, to date, received many government bills that have required study. You might have a window of opportunity.
Senator Andreychuk: Senator Joyal indicated that if this went on and the Prime Minister did not exercise his discretion, we would end up with no senators.
Senator Moore: That is regardless of who the prime minister is.
Senator Andreychuk: Yes, and that would be violating the Constitution. That has been rebutted by you by saying that the Governor General has certain responsibilities that he or she could exercise that would not bring us to that brink of constitutionality.
Why did you pick 180 days? The Constitution in this area was crafted — and I think our Constitution was ingeniously crafted — to give this wide discretion to a prime minister. It was there for a reason. It was not there by accident.
You have chosen to say that you want to fetter a prime minister's discretion to 180 days. Why do you think that is fair? Why do you think that his or her powers should be fettered to that extent when, in fact, history points out that many prime ministers, for whatever reasons, have not exercised their discretion within 180 days?
Senator Moore: I acknowledge your last statement. I have said that in my own remarks. I, again, repeat, that I do not think that makes it right. Regardless of what political stripe the person holding the office of prime minister may be, it is still a denial of the constitutional right of Canadian citizens to have timely and proper representation in each House of Parliament.
I chose 180 days to be consistent with section 31(1) in the Parliament of Canada Act, which states the following:
Where a vacancy occurs in the House of Commons, a writ shall be issued between the 11th day and the 180th day after the receipt by the Chief Electoral Officer of the warrant.
Obviously, a bit of a breathing period after the actual vacancy is required, hence the eleventh day. That act was the basis of my thinking in proposing that time period.
Senator Andreychuk: The underlying premise of all of this is that you say that people will be denied their representation. You have canvassed some reasons.
In a democracy, the will of the people should come through in one form or another, and I will not go into a political science debate. If this is such a crisis of lack of representation, first, how have you consulted with the people of Canada about this, and, second, would the people not express their satisfaction or dissatisfaction with the prime minister and his or her exercise of powers and office through an election?
Because of an act, now it will be every four years, but it used to be at least once within five years, that people could express whether they were dissatisfied with a particular prime minister for not acting, if this was of fundamental importance to their representation.
Can you answer either of those questions?
Senator Moore: I will try to answer.
With regard to the last part of your comment, this is consulting the people of Canada. You are representing the public. The Senate Chamber is a voice of the public. I suggest to you that that is a fair response to the point that you raise.
In terms of reacting to any prime minister's decision to play with the calling of by-elections, do you think the people in Toronto Centre feel good about having to wait 8 months and 15 days, where the people in Roberval—Lac-Saint-Jean wait 1 month and 19 days? There is something fundamentally wrong with that.
I am trying to bring balance or sense of uniformity to this situation so that, regardless of what riding you live in, you will have an elected person representing you in the House of Commons or an appointed person representing you in the Senate of Canada.
Senator Andreychuk: I am pleased that I am not presenting the bill because I would have to answer questions.
I am serious about this point. I am from Western Canada where people have made their views known to all of their political parties that they do not approve of the way senators are appointed. They want a different process. Many people want an elected process. Many others have said that they do not want the partisanship to be in those appointments. Some people would prefer some other process, such as that voiced by Senator Stratton.
If a prime minister is listening to that and is attempting to work out some way to answer the voice of the people and, in so doing, takes more time making appointments, what is wrong with that? Why should the representation and consultation only be amongst us in the Senate? That is one valid way of hearing people, but only one way.
Senator Moore: You have started out asking me again about Senate reform. I am not here to talk about that. I am here to give a fairer structure as under the current law.
Senator Andreychuk: You feel very comfortable in putting limits on the discretion of a prime minister. Do you also have the same comfort level in putting limits on the discretion of judges?
Senator Moore: I never thought about that.
Senator Murray: As you know, I am not a member of this committee. Therefore, I thank you for your indulgence and recognizing me.
The Chair: No indulgence is required.
Senator Murray: I am here to offer moral support to Senator Moore in his endeavour. I believe he is on the right track, subject to a couple of comments that I intend to make.
Other issues have arisen, so I should declare myself in answer to Senator Stratton's question about the elected Senate. Am I in favour of an elected Senate with the same powers as the present Senate, equal to those of the House of Commons? No, I am definitely not. We can only have one confidence chamber, and that is the House of Commons. Am I in favour of an elected Senate with the present imbalance of regional representation? Again, the answer is an emphatic, "No."
I am slightly more sympathetic to Senator Stratton's view about changes in the appointments process. I would examine his suggestions or his forthcoming bill, if there is one, with an open mind.
Having said that, I am conscious of the comments made by Senator Andreychuk about the dissatisfaction with the way senators are appointed. I certainly recall the consternation among Progressive Conservatives in Saskatchewan on the day that she was appointed to the Senate, not having had a partisan background. I hasten to say that it is the case, as Senator Joyal points out, that she is a fine senator. Whether she is the exception to the rule or whether she proves the present system of appointment is a good one, I leave to others.
Senator Moore, I appreciate and support what you are doing. I have one or two issues that are rather technical. The first issue is with respect to the House of Commons. The law, as I understand it now, requires a prime minister to issue a writ for a by-election six months after a vacancy has been registered in the House of Commons.
Prime ministers seem to have a good deal of latitude, however, as to setting the actual date for the by-election. For example, the constituency of Roberval—Lac-Saint-Jean became vacant with the resignation, in this case, of Michel Gauthier on July 29, 2007. The Prime Minister acted swiftly. Thirteen days later, he issued a writ. Thirty-seven days later, the by-election was held. The total time that elapsed between Mr. Gauthier's resignation and the election of a successor in Roberval—Lac-Saint-Jean was 50 days.
On the other hand, in that same month on July 2, 2007, the Honourable Bill Graham resigned as the MP for Toronto Centre. The Prime Minister waited just a few days short of the full six months before issuing a writ for a by-election. He did so on December 21, 2007. He called the election for March 17. The by-election campaign lasted for 87 days therefore. The total time elapsed between Mr. Graham's resignation and voting day was 259 days.
One problem that has arisen with the calling of by-elections is that when the vacancy occurs in the fourth year of a Parliament's mandate, prime ministers, trying to avoid a situation in which a by-election is held within a few days, weeks or a month of a general election, call a by-election for a date that they know will be beyond such a time, and the eventual writ of dissolution for a general election, of course, cancels out the by-election.
I wonder whether a way could be found, through an amendment to the Canada Elections Act, to provide that, in the fourth or fifth year of a Parliament's existence, a vacancy occurring would not be subject to the requirement that a by-election be called within six months.
The second issue, with respect to the Senate — and this is getting a bit picky but I do want to mention it — you would require the prime minister to recommend to the Governor General, within 180 days after the vacancy occurring, a fit and qualified person. There are conventions in regard to the recommendation. For example, a prime minister whose government has lost the confidence of the House of Commons may not, according to convention, try to fill a Senate vacancy until that situation has been corrected.
Senator Moore: That is happened. They have been denied.
Senator Murray: As you know, in at least one case, a prime minister who tried to fill some Senate vacancies was sent packing, and rightly so, by the Governor General.
I do not know whether an amendment would be required to meet a situation in which the six months came up after the prime minister had lost the confidence of the House or, indeed, after he or she had lost the election. However, the prime minister obviously could not, under those circumstances, properly recommend a senator, nor would the Governor General accept such a recommendation. I will leave those picky points for your consideration.
Senator Moore: Those are interesting points. I am open to ideas that would improve this bill.
You mentioned a real possibility, especially in view of the fact that we now have set dates for federal general elections, that if there was a vacancy in a constituency within six months of the date for a federal election — and I use that number simply because I have been using it throughout — then setting that by-election would be waived pending the general election.
On your second point, the person in the situation you mentioned would be prime minister by title but not by authority, so I do not believe the Governor General would be required to accept the advice of such a person.
Senator Murray: It would not be necessary to amend the bill in that respect.
Senator Moore: I do not think it would be necessary.
Senator Joyal: If I recollect constitutional history correctly, once Parliament has been dissolved, a prime minister who has tendered the resignation of the government to the Governor General has refrained from making recommendations to the Governor General. That seems to me to be a convention. In other words, no appointments are made once a government has tendered its resignation to the Governor General.
Senator Murray: It happens seldom, at any rate.
Senator Joyal: That is the convention.
Senator Moore: I believe it was tried once, and the Governor General declined the advice.
Senator Joyal: I will have to look in the history books, but that has traditionally been the practice.
Senator Murray: I am aware of the appointment of a fairly senior judge to the Federal Court of Canada by a prime minister who had lost the confidence of the House, but he consulted the then-leader of the opposition before making that recommendation.
Senator Joyal: That is one way of serving the principle.
Senator Stratton, I am on record as having supported the principle of your suggestion in a book entitled Protecting Canadian Democracy: The Senate You Never Knew, which was first published in 2003 and reprinted in 2005 and 2007. All royalties from the book are given to the Canada School of Public Service.
I quote from page 298 as follows:
The most effective way to establish a transparent process for appointing senators would be for Parliament to enact a law that would:
. . .
establish an independent Board of Review, appointed for the life of each Parliament.99
Referring to the notes on page 313, note 99 states:
. . . such a board could be composed of: 1) a retired senator from each of the two main parties represented in the Senate; 2) a retired member of Parliament representing the party with the largest number of members in the House of Commons that is not represented in the Senate; and 3) two other Canadians of good report, whose achievements have caused them to be honoured as Companions of the Order of Canada.
We are not greatly divided in our opinions, Senator Stratton. It could be an interesting discussion.
Returning to this bill, would it not be possible for a province whose Senate seats were left vacant for a while to seek an opinion through a reference to the Court of Appeal on the obligation to fill seats in the Senate? Have you thought of that?
Senator Moore: I thought about some of these aspects when, earlier in the session, I had a motion on the Order Paper asking the Governor General to make the appointments in the absence of advice from the Office of the Prime Minister. I reflected no further on it. There is nothing to prevent any person or province from asserting rights under the Constitution. I expect they would be heard.
You are talking about a situation where a region's numbers have been depleted in the Senate. We are getting close to that now. British Columbia has three vacant seats out of six. That is 50 per cent.
Senator Campbell: There is a massive weight on my shoulders.
Senator Moore: That is a very real example. I hope someone is looking at that.
Senator Joyal: I know of two decisions of the Supreme Court of Canada wherein the court recognized that the exercise of a prerogative power by the executive is not beyond review by the court.
In 1983, in Thorne's Hardware Limited et al. v. Her Majesty the Queen, Justice Dixon said:
Decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings.
Justice Estey, in Attorney General v. Inuit Tapirisat of Canada of 1980, said that the mere fact that a statutory power is vested in the Governor-in-Council does not mean that it is beyond judicial review.
In other words, to give the Governor General a base to act proprio moto according to section 24 of the Constitution, would it not help for a province to get a declaration from the Court of Appeal of its province, through a reference, that a region is, according to constitutional principles, entitled to have its voice heard in the legislative process of Canada?
Senator Moore: I believe they would be absolutely entitled to do that and that it would be irresponsible for them not to pursue that.
Senator Joyal: Is there not a way to bring the Governor General to act in the absence of action of a prime minister in order to satisfy the constitutional principles entrenched in the legislative structure of Canada?
Senator Moore: Short of the Governor General taking it upon himself or herself to act as authorized under the Constitution of the country, if he or she needed another authority, and I do not think he or she would, but if that person did, such a declaration could be sought and obtained. Also, I expect it would have to include a provision requiring the Governor General to act pursuant to the Constitution.
This is getting away from the bill, but it is an interesting discussion. I am not sure how much you can tell the Crown what to do in terms of Her Majesty or her representative in Canada. I would have to do some research. There is a provision in the Constitution that seats are to be filled. I do not know why the person in the Governor General's office could not be approached by another means, and I do not know what it would be, but something other than going to court. Surely the person in that office would have, I would expect, legal counsel and does not sit there in a bubble unaware of what is going on in the country. They would know that the situation is not in keeping with the Constitution and is not tenable. It has to be fixed, and the vacancies have to be filled, and that person would exercise his or her responsibility under the Constitution of Canada.
The Chair: Senator Moore, thank you very much. This has been an extremely interesting meeting.
[Translation]
The Chair: I invite our next witness to come forward. We welcome Mr. Marc Mayrand, Chief Electoral Officer. Mr. Mayrand has spent a great deal of time with us over the past few months. We are always happy to have him join us. With him are Ms. Diane Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel and Regulatory Affairs, and Mr. Stéphane Perrault, Senior General Counsel and Senior Director. I would appreciate it if the witnesses would kindly take their place.
Welcome to all of you. I see that Mr. Mayrand has a presentation he would like to make to the committee. Senators have received a copy of the text. You have the floor, sir, after which we will go to questions.
Marc Mayrand, Chief Electoral Officer, Elections Canada: Honourable Senators, it is a pleasure to appear before your committee today to speak on Bill S-224, sponsored by the Honourable Senator Moore and entitled An Act to amend the Parliament of Canada Act (vacancies).
My remarks will focus on clause 2 of the bill, the proposal to add a new section 31.1 to the Parliament of Canada Act. This provision would require that writs for by-elections be issued in the order in which the seats in the House become vacant.
First of all, let me briefly review the current procedure for dealing with vacancies in the House of Commons.
Under the Parliament of Canada Act, a member of the House who wishes to resign must give notice of that intention, either verbally in the House or in writing to the Speaker. If the reason for the vacancy is the acceptance of another office by the member, or a seat becomes vacant on the death of a member, the Speaker may be informed verbally in the House by another member of the House, or by a written notice signed by any two members of the House.
Regardless of the reason for the vacancy, the Speaker then addresses a warrant to the Chief Electoral Officer for the issue of a writ of election for the electoral district represented by the former member.
Section 31 of the Parliament of Canada Act provides that the election writ must be issued between the 11th and the 180th day after receipt of the warrant by the Chief Electoral Officer.
[English]
Upon receiving the warrant for the issue of a writ, I officially inform the Leader of the Government in the House of Commons, who is the minister for the purpose of the Canada Elections Act, of the date on which I received the warrant. In this letter, I also inform the minister of the specific dates between which the writ must be issued to meet the requirements of section 31 of the Parliament of Canada Act.
As provided by section 57 of the Canada Elections Act, it is the Governor General who sets, by order-in-council, the exact date of the issue of the writ. The order must also specify the electoral district or districts in which an election will be held and the date of that election.
Once the order is made, section 58 of the Canada Elections Act requires that the Chief Electoral Officer issue a writ without delay to the returning officer for each electoral district in which an election is to be held.
The addition of the new proposed section 31.1 to the Parliament of Canada Act would impose on the Governor-in-Council an additional requirement for the writs to be issued in the order in which the seats became vacant. This requirement does not particularly affect Elections Canada's operations. For our part, as soon as we receive the warrant for the issue of a writ, we intensify preparations for a by-election in the electoral district affected by the warrant. It is our duty to be ready for by-elections that could be called at the same time in all electoral districts for which there is a vacancy.
My colleagues and I are available to answer your questions.
Senator Andreychuk: For clarification, from what I understand, you looked at this proposed legislation, and you are saying that you would not change what you are doing now.
Mr. Mayrand: That is correct.
Senator Andreychuk: You are triggered by receiving the notification.
Mr. Mayrand: We receive notification from the Speaker, and then getting the order-in-council fixes the date.
Senator Andreychuk: You see this as a political issue, and, as far as your administration, it would not change anything you do.
Mr. Mayrand: That is correct.
[Translation]
Senator Joyal: Generally speaking, when a seat becomes vacant, regardless of the reason, are you not on alert from that very day, since an election could be called within the next 24 hours?
Mr. Mayrand: The 11-day waiting period still applies. Obviously, as soon as a vacancy is announced, we shift into gear and start making arrangements.
Senator Joyal: I am certain that, for the sake of good governance, as soon as a seat becomes vacant, you know that sooner or later, you will have to assume your electoral responsibilities. And, as we can see from the table that was distributed to us this morning, an election can be held "later," but it can also be "sooner".
As far as you can recall, or according to your own statistics, what is the shortest amount of time that has elapsed between an announced vacancy and an actual by-election in Canada? In other words, what is the shortest amount of time that you have had to prepare for a by-election?
Mr. Mayrand: On looking at this table, I can see a few examples. The shortest period of time would appear to be 49 days.
Senator Joyal: So then, that corresponds more or less to an actual election period?
Mr. Mayrand: That is correct.
Senator Joyal: When exactly was that? Was this by-election held at a time when voter enumeration had to take place?
Mr. Mayrand: I am told that there was an even shorter 47-day period in the case of a by-election in Hamilton East in 1996. The notice of vacancy was given on May 1 and a by-election writ was issued the very same day. The by-election was held on June 17, which represents a 47-day election period.
Senator Joyal: That was the minimum period of time allowed by law at the time.
Mr. Mayrand: Correct.
Senator Joyal: When a seat becomes vacant, you are ready to carry out your responsibilities under the act.
Mr. Mayrand: Yes, it is critical that we be ready.
Senator Joyal: Therefore, a longer period does not really impact your ability to start preparing for the by-election.
Mr. Mayrand: Our preparations are always based on the shortest time frame possible. If we have more time, then it can make certain things easier for us.
Senator Joyal: If the bill were adopted as is, with the provisions that concern you, it would have no impact, either directly or indirectly, on your operations. Correct?
Mr. Mayrand: As the bill now stands, our operations and procedures would not really be affected.
Senator Joyal: Fine then.
[English]
Senator Murray: Earlier when Senator Moore was the witness, I raised the problems that arise when vacancies occur in the House of Commons during what is normally taken to be the final year of Parliament's existence. Prime ministers have tried to avoid the confusion by simply issuing a writ and setting a date they know — or at least think — will be sometime after the general election, which then overtakes and cancels the by-election writ.
The confusion is added to, I think, in the case where a redistribution order has gone forward. Redistribution usually takes effect with the issuance of the writ for the next general election. In theory, you could have situations in which, in an old constituency, a by-election is held followed by a general election on the new constituency boundaries all within a short time of each other. That creates even more confusion.
Would it complicate, simplify or have no effect whatsoever on your life if we amended the Canada Elections Act to remove the requirement for the issuance of a writ when a vacancy in the House of Commons occurs in the fourth year, let us say, of a Parliament's existence?
Mr. Mayrand: Again, as we speak to the discretion of the prime minister and the Governor-in-Council, I guess my reservation is that it would depend also on how long the vacancy has existed, as well as which riding it occurred in. That is a consideration not for the administration of the election, but for the Governor-in-Council.
Whether there would be no by-election in the year prior to a general election, it is a bit difficult to tell because, again, especially during a minority government, you really do not know when the election will take place. I would have to think about it in the context of a fixed-date election.
Senator Murray: I see.
Mr. Mayrand: I would like to think about it a little bit more before I answer you.
Senator Murray: Fair enough.
Senator Moore: Thank you, witnesses, for being here.
I want to follow up on Senator Joyal's questioning. I would like to consider the last five or six by-elections that occurred. They did not all occur in the same sequence in which the relevant vacancies occurred.
As I mentioned in my remarks earlier this morning, when the by-election in Roberval—Lac-Saint-Jean was called, there were three prior vacancies for which by-elections were not called. In fact, it would be four months later before those writs would drop.
Can you give us an indication whether the decision to hold these by-elections selectively was driven by concerns expressed by your office?
In other words, was there some administrative reason why by-elections in Toronto Centre, Willowdale or Vancouver Quadra could not have been held at the same time as the Roberval—Lac-Saint-Jean by-election? Did the government hold back because Elections Canada was not ready?
Mr. Mayrand: We are not consulted on the date of the any election, in any circumstances.
Senator Moore: Is there any administrative reason why the other three by-elections could not have been held?
Mr. Mayrand: Do you mean an administrative reason in terms of readiness of Elections Canada? Again, our motto is to be ready to conduct elections at any time.
Senator Moore: Therefore, from your standpoint, there is no operational or administrative imperative underlying the discretion of the Governor-in-Council with respect to the sequence in which the by-elections are called?
Mr. Mayrand: Not that I am aware of.
Senator Moore: With respect to the recent by-elections, a campaign period was 87 days, more than double the minimum period for a general election campaign. That seems like a very long time.
Who determines the length of time for the campaign? Why was it so long this time, and were operational considerations from your office a factor?
Mr. Mayrand: The date is set in the order-in-council.
Senator Murray: Is there is no maximum time for by-elections?
Mr. Mayrand: There is no maximum period for by-elections.
Senator Murray: Is there for general elections?
Mr. Mayrand: No, there is not. The last general election was 55 days. There is only a minimum in legislation, which is 36 days for by-elections or general elections. There is no maximum.
Senator Murray: That is another matter we should consider.
Senator Joyal: For historical knowledge, do you have in your statistics what the longest period was in the history of elections in Canada at the federal level?
Mr. Mayrand: For a by-election or a general election?
Senator Joyal: For a general election.
Mr. Mayrand: For general elections, unfortunately, I do not have that with me today. However, I would be more than happy to provide it to the committee.
Senator Joyal: I remember when I was an elected member the average period was 55 days. At that time, enumeration had to take place, which was at least two weeks. Therefore, the election did not start before the enumeration was completed. That stretched the period to a minimum of two weeks at least.
Now, since you have a permanent list, that period is normally shorter.
Mr. Mayrand: Yes, there is a minimum of 36 days.
Senator Moore: Let me explore an option that I looked at but decided not to pursue as part of my initiative, and that is a concern that vacancies not go unfilled for too long. My bill will reduce the capacity of the prime minister to selectively prolong vacancies as part of a political strategy.
With respect to the six-month rule in the House of Commons, is it really necessary for that window to be so wide open? In the United Kingdom, it seems that vacancies are filled much more quickly; sometimes within weeks. I think the whip of the party that has the vacancy brings a motion before the House of Commons. Once that is adopted, the legislative process is put in play and the by-election happens usually within weeks.
In Canada, it is such an open window. Are there any operational reasons why the six-month period in our law could not be shortened?
Mr. Mayrand: No, it could be shortened from an operational point of view. There is no particular reason. Again, for us, the triggering event is the issuance of the order-in-council that gives us the date on which the election must be conducted.
Senator Moore: Yes, Senator Joyal asked you about the fastest by-election, and you said that it was 47 days.
Mr. Mayrand: In that case, the notice of vacancy issued by the Speaker was on May 1. The order from the Governor-in-Council was issued on the same day. The election date was set in that order for June 17, which led to a campaign of 47 days.
Senator Moore: The Roberval—Lac-Saint-Jean situation that I mentioned earlier was 50 days, I believe. It was very close.
If the decision on timing the writ were taken out of political hands and placed in the hands of the Chief Electoral Officer, given that you say that you are able to organize by-elections in much less than six months, would you say that we might see by-election writs dropping more quickly than is currently the case? Would you even go so far as to say that in such a scenario, you could develop a standard or a norm in terms of dropping the writ as soon as is practicable? Can you speculate on what a norm might be in that situation? Is that too hypothetical?
Mr. Mayrand: Yes, it is highly speculative, and it would warrant much discussion in Parliament as to whether the Chief Electoral Officer should be tasked with fixing a date.
Senator Di Nino: Welcome, Mr. Mayrand. It is good to see you again. I want to go back to the issue of Senate vacancies, but I want to do it through a question dealing with the Canada Elections Act. The Prime Minister, in effect, has declared that his preference is to appoint senators after consultation with the people in the provinces where the vacancies occur.
There is a bill in the House right now which is before committee, Bill C-20, I believe, which will eventually come to us for study. I have to admit I have not looked at the bill.
The Chair: It will come to us if it passes.
Senator Di Nino: If it passes, of course.
My question to you deals with the scenario put forth by Senator Joyal about the inaction of the Prime Minister, which obviously in Bill C-20 would not be the case. How does that impact the Canada Elections Act, as far as you are concerned, but particularly how does it impact your department? Does it create any issues with which we need to deal?
Mr. Mayrand: I did appear before the House committee examining Bill C-20 about two weeks ago and shared some operational concerns with regard to what was provided in the bill as it stood at that time. I am not sure if I need to go into detail, but there are some issues with running a Senate consultation in parallel with a provincial general election, and issues in the bill in terms of the rules that would govern that consultation process. Also a number of issues existed with regard to the distinction between the consultation candidates' campaign and their separation from the parties or candidates to the elections. I shared a number of operational issues with the committee.
Senator Di Nino: They would be issues that would not impede and affect the legislation other than technical changes that would have to be made.
Senator Joyal: That bill is not in front of us.
The Chair: The bill, indeed, is not in front of us, although this morning, we have discussed a number of bills that are not yet in front of us.
Senator Stratton: That is the discussion process, senator.
Senator Di Nino: It is not the bill itself. I am talking about the process that the Prime Minister has put in place to deal with the issue that Senator Moore is dealing with principally, which I understand is the vacancies in the Senate. That is what we have been discussing. Since we have Mr. Mayrand here, I would like to know if there are concerns about the process that has been put in place by the Prime Minister.
The Chair: Senator Di Nino, my recollection is that Mr. Mayrand gave long and detailed testimony to the House of Commons committee. We did not ask him to prepare today to repeat that extremely detailed testimony to this committee, which is why I am reluctant to pursue this particular line of questioning. If colleagues wish, we can circulate the transcript of the hearing before that House committee or send you the electronic link so that you can print it out in your own offices. It was an interesting session, but it was not what we asked him to speak about today.
Senator Di Nino: With respect to Mr. Mayrand, I asked a question that he could answer however he felt it was appropriate. Madam Chair, you have the hammer, so you can decide.
The Chair: I just decided.
Senator Stratton: Could you distribute that information?
The Chair: If colleagues wish it, that is very easy to do, and the clerk will do that.
Mr. Mayrand, what do they do in other Westminster systems? Senator Moore has alluded to the process in Westminster, which would be a real revolution here. Allowing an Opposition Whip to call a by-election would be new to the Canadian system.
In other Westminster systems, is there any rule of which you are aware that is similar to what is proposed here, namely, that by-elections must occur in the order in which the vacancy occurs?
Mr. Mayrand: This is not something I examined before coming here today. We could certainly look at a few of the Westminster democracies to see how they proceed in terms of the timing or the requirements for by-elections.
The Chair: It might be interesting if there are variations in the way different Parliaments have evolved their handling of these matters. That was, in fact, my question.
We thank you once again for enlightening us. I had no idea of the technicalities of how we get from a vacancy to a new MP. It is fascinating.
This meeting now stands adjourned, colleagues. Our next meeting will be on Wednesday, April 30, in this room, when we shall continue our consideration of this bill.
The committee adjourned.