Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence for May 1, 2008
OTTAWA, Thursday, May 1, 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.
[Translation]
The Chair: Colleagues, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill S-224, an Act to amend the Parliament of Canada Act (vacancies). We have the great pleasure of welcoming as our first witness today, Mr. Gérald R. Tremblay, who is a partner at the McCarthy Tétrault law firm in Montreal. Thank you very much for having accepted our invitation, Mr. Tremblay. You are aware of our procedures; we ask you to make a presentation and afterwards, we will move on to a question period.
Gérald R. Tremblay, Partner, McCarthy Tétrault LLP, as an individual: I thank you for your invitation, Madam Chair. It is always a pleasure and a privilege to appear before you. It would be the second time that I appear on the issue of Senate reform. The first was last September 21. At the time, we were discussing the 10-year mandate; seven, eight, or nine years as compared to 75 and of Senate elections.
I had the opportunity to appear with Senator Beaudoin, who was sitting beside me. He is a friend of yours as well as mine because he was my teacher at law school at the University of Ottawa. I am alone today and therefore I have neither the moral nor the physical support of Senator Beaudoin, but I do hope that he will not be disappointed in his student's statements. His name is Gérald-A. Beaudoin and I am Gérald R. Beaudoin. It has often been said that Gérald A. brought Gérald R. into this world.
The question posed by the bill is an interesting one. Even though this is a private senator bill, it provides us with the opportunity to stir up some extremely important concepts in the evolution of the Canadian Constitution.
[English]
Basically, there are four issues. First, we assume that the Governor General has full discretion to appoint whomever she wants. That is what the British North America Act said in 1867 and continues to say, but the Governor General must respect the numbers of representation per province, and so on.
Second, by giving Royal Assent to a bill that would have that effect, can the Governor General acquiesce to a limitation to her own discretion? Is it illegal for someone who has full discretion to agree to have some legislative guidelines to exercise his discretion? If the Governor General does so by giving Royal Assent to a bill, is she, directly or indirectly in a matter like this one, affecting the constitutional balance? Is she amending the Constitution? If she does, in view of the wording of section 41, does it affect only the federal side of the Constitution, which the federal Parliament has the right to amend?
Third, does framing the power or the discretion to appoint affect the federal-provincial balance of power as established in the British North America Act, 1867, and now incorporated in the Constitution Act, 1982?
Finally, there is the problem of sanction. I read the debate in which Senator Joyal participated. The question was asked: What do we do if someone who has either a constitutional duty or a legal duty to do something at that level does not do anything? Do you impeach the Governor General? What do you do? Is the sanction political only? Is it merely public brouhaha? Would a court, for instance, displace the Governor General and say that the Supreme Court must appoint another one because this one does not respect the six-month time limit contained in the act in which the Governor General agreed to be limited by way of discretion?
Those would be the four questions. In my humble opinion, it is not abnormal or uncommon for a government authority that would have total discretion according to the Constitution to accept this power to have boundaries or to have limitations.
[Translation]
The example that most frequently comes to mind and that I believe has been mentioned to you is that of judicial appointments. The Constitution is just as specific and just as vague on judicial appointments as it is on Senate appointments. The Governor General, under sections 96 to 100, appoints judges to the superior courts across Canada. There is absolute discretion. And yet, federal legislation and almost all provinces have Judges Act or Canadian Judicial Counsels and in fact there is a debate as to whether or not it is right for this committee to have a policeman as a member with the opportunity to say whether or not this or that person should be appointed as a judge. Today, no one challenges whether or not this kind of legislation is legally correct.
The problem that arises is that of a assent. What happens if the Governor General, notwithstanding all of the required mechanisms for consultation before appointing someone, were to decide to set aside the recommendations and to say: the judicial appointment committee is putting forward candidates one, two, three, four and five. I am going to disregard that and appoint six.
That is not right. You have a statutory scheme. The fundamental issue is the following: the Constitution sets out that the Governor General appoints judges. Would this appointment be illegal? It is the parallel situation that most often comes to mind. If we can set out guidelines for judicial appointments, we can no doubt do the same for senatorial appointments.
The proposal is that there would be a requirement to appoint or replace a senator within six months. The question is, and it is very interesting and very theoretical — but it is always when reasoning is pushed to its most absurd that we see where the real principle lies — if the Prime Minister were never to advise the Governor General and we found ourselves with no senators after 10 years, we would de facto have abolished the Senate. What would be the penalty?
Could the Supreme Court say: given that no one has acted, we are issuing an injunction under which the Governor General must appoint senators? And if the Governor General did not appoint any senators, I find him or her in contempt to court. Ultimately, that would mean that the House of Lords in England could find Her Majesty guilty of contempt to Parliament if she did not appoint representatives to the House of Lords.
It is rather as one says in diplomacy, the ultimate sanction is war. In this case, in my humble opinion, the ultimate sanction is political. And there are no mechanisms that can ensure the application of such a measure. But what people now call a constitutional convention is created over a period of years. Once the process has been in place for a number of years, no one notices anymore.
The Constitution does not even make any mention of cabinet, of the council of ministers. There has not been a single government since Confederation that has functioned without a cabinet, and the same thing is true for England. There are constitutional conventions that are as robust as legislation, so long as the social contract is respected by those who are living it.
I think that legislation that would define the exercise of discretionary powers, were it be those of the Governor General, could not be legally challenged. It would be allowable legislation.
The other problem is that of assent. In our case, would the fact of defining the power or discretion of the Governor General have the effect of amending or modifying the Constitution? In the case before us, it is even more specific because the bill sets out that there be a six-month maximum period within which vacancies must be filled. Would the Constitution in fact be amended by a simple piece of legislation in having a provision like this, whereas the Constitution says from time to time? Is that the same thing as six months? It is debatable.
I believe we can say that it would amend the Constitution to a certain point. However, does the Canadian Parliament have the right to do so and is this not in fact its internal Constitution? In my humble opinion, I believe the answer is yes.
[English]
The famous decision that everyone quotes, the Senate Reference, says that any amendment has to be analyzed with one phrase in mind: Does it in any substantial way affect federal-provincial relationships?
It is difficult to pretend that telling the Governor General that she must fill a vacancy within six months affects in a substantial way the federal-provincial relationship. Therefore, in my humble opinion, this amendment, were it an amendment, would not be illegal.
The Chair: Could you please restate the legal-illegal argument? We have some confusion here about exactly the point you have made, sir.
Mr. Tremblay: Either I am not clear, or the translation is not clear. Those guys are trying to do their job.
The Chair: The translators are wonderful members of the Senate administration.
Mr. Tremblay: I am saying that if such a provision were adopted, and if it were considered as an amendment to the Constitution, I do not think that that amendment would be considered illegal, because it does not affect in any substantial way the federal-provincial relationship. That is my point.
Senator Oliver: Now I understand it.
Mr. Tremblay: I apologize for my poor command of the English language.
The Chair: Are you fishing for compliments?
Mr. Tremblay: I play humble at times. Someone once said that if you keep saying that you are humble, you are just proving that you have every reason to be.
What we all have in the back of our minds, though, is how this single private bill, only a clause or two, fits within the context of the other bill. We cannot erase from our minds the debate that we had in September 2006 on the reform of the Senate. Taken in isolation, the bill has one impact, but taken with everything else, it may raise another dimension. Although I have been called here on this particular piece, I will speak about the other stuff, too.
The reduction from 75 years of age to an eight-year or nine-year mandate becomes a question of degree. The Supreme Court also said that it was legitimate or legal for the federal Parliament acting alone to amend the Constitution to take the lifetime tenure and reduce it to 75 years of age, but at the same time they said that you cannot emasculate, and I have to watch my language here, the system by appointing for two or three years because then it becomes at the will of the government of the day. Then it becomes a question of degree.
Personally, I was not totally convinced, because in the United States, there is a completely different approach. They say lifetime tenure, and that is what it is. It would take three quarters of the states to agree to something else. Judges are appointed. You roll them into the courts in their wheelchairs, and if they do not want to resign, there is nothing that can be done. You just speak louder.
However, here it was decided that it was legal. If it is legal to continue until age 75, why not until age 60 or age 55? Where is the line? Then it becomes a question of degree.
That is why this amendment that is on the table today has to be read in the context of what you do with the rest. That was my point. On the rest, too, it would not be illegal for the Governor General to say, "Before appointing a senator, I would like to have the views of the population of the province from where the senator is supposed to come." It would not be more binding than the judges example I gave a few minutes ago.
Even if you look at the Reference re Secession of Quebec, a referendum, where everyone is consulted, cannot have a legislative impact; it is a signal to negotiate, a signal to do something. However, it is not illegal. If it is not illegal to consult the premiers or the people — in fact, it is desirable for the appointment to the Supreme Court of Canada, for instance — it would not be illegal either to say, "Before appointing a senator, I would like to have the views of the people of the province whose interests he is supposed to represent."
That is why there are two aspects. You take it in isolation, or you take it as part of the package that is currently being considered.
As an aside, on May 31, I will be the head of the Québec Bar. I think it has to be clear that no one knew that I would be the leader of the Québec Bar when I was asked to come here in 2006. It is in the same capacity that I am here today. One day, a bar committee could come with another view, but what I am saying today is my personal view.
The Chair: Congratulations. We are doubly honoured, therefore, to have you with us.
Mr. Tremblay: It does not make me more intelligent.
Senator Andreychuk: Thank you for your comments today. Yesterday, we heard a slightly different version, at least in my assessment of it. If the appointment is made, as you said, and if we reduce the tenure from lifetime to age 75, you have given some reasons why that was adequate. However, you also said they did not rule if we had changed it to age 50 or 45. Therefore, age 75 seemed eminently reasonable to support the working of the Senate in that concept.
Now, the argument I think Senator Moore is making is that at some point vacancies cause a problem for the working of the Senate. At first blush, it looks like a similar situation. Therefore, it is within the workings of the Senate to pass this bill.
However, we heard a comment that the fundamental reason senators are here is to represent provinces and minorities, and if you were to in any way tamper or change the appointment process, which is the fundamental essence of representation from provinces, it would be a federal-provincial issue; it would markedly affect the federal-provincial relationship. Their negotiation and their involvement would be needed, and therefore probably a constitutional amendment would be necessary.
Mr. Tremblay: Before coming here, I read what Mr. Pelletier said in 2006. By the way, he wrote that book. I would not say it is the Bible, but it is one of the basic books. His theory is precisely what you are saying.
My own view — and I am just trying to be logical — is this: In what way are the provinces better protected by a non-consultation process rather than by pure discretion of the Prime Minister? They are saying that if you start playing with those concepts, it should involve everyone because it is the Canadian fabric. I think that the views of minorities — French Canadians in Quebec, for example — would be better known if there were an electoral process rather than the discretion of the Prime Minister alone in his office talking to a couple of his advisers. There is no crystal clear answer.
Senator Andreychuk: I was referring to the testimony that we received yesterday. We are talking about responsible government. The provinces, or at least the original provinces, coming into the Constitution in 1867 knew exactly what they were doing when they gave the discretion to the Prime Minister.
I would take it one step further: If the provinces did that, they did it for some reason, I have to assume. That discretion was necessary in the eyes of the provinces as well as in the eyes of the federal government. To step in now and say, "Well, we will give you six months in which to appoint," might limit what a prime minister wants to do in an appointment process. He might want to consult the community or segments of the community or he might want to reflect. There might be a reason for deferral, perhaps a host of reasons. Therefore, the discretion that the provinces gave the Prime Minister should not be taken away unilaterally by the Senate.
Mr. Tremblay: My mindset was larger. I was thinking about the election of the Senate. However, you are talking about the bill here.
First, even in that judgment, they say that water has gone under the bridge. Can you imagine the Province of Ontario saying, "The only reason we are joining is because we have an equal number of senators"? Only federal legislation or order-in-councils took in other provinces and added to the mix, thereby reducing Ontario's percentage of the total.
Senator Oliver: There were the Maritimes, Quebec and Ontario.
Mr. Tremblay: Ontario was a third at the time. Now they are 24 out of 105. Did they have a say in that? No. Therefore, if we talk about the original deal, to follow the same logic we should have said, "Ontario, you joined on the basis that you were one third. Do you agree that you will be reduced to one sixth? If you do not agree, it is breaking the deal. Therefore, we will not do it." That happened. We are living with that now.
I agree with you. There are two ways to go about it. You are taking the Latin way, which is like a French garden: it has to be squared. The other way is the English way, with flexibility.
Senator Murray: They muddle through.
Mr. Tremblay: Yes, muddle through; that is well stated. Both are beautiful.
Senator Andreychuk: I rather like the French garden. I still come back to this point that you are taking the logic from one point of view, but you also asked what is the sanction, and you said that ultimately the sanction will be political. To go back to the arguments that I was pondering last night, the discretion was given totally to the Prime Minister. Ultimately, the choice is one that the Prime Minister makes. The sanction will be either an election or some other way in the House of Commons or elsewhere.
Mr. Tremblay: Or the Governor General will dissolve the House.
Senator Andreychuk: Exactly; so they would be political ramifications. Therefore, I think the discretion given to the Prime Minister took that into account.
Mr. Tremblay: The problem of sanction bothers me a lot. The difference between a real constitutional amendment and a simple act of the federal government acting alone creates the anguish about what the sanction would be because it is not contained in the Constitution, it is contained in federal legislation. There is no clear answer to any of that.
[Translation]
Senator Joyal: My first question is related to the Supreme Court decision on the Senate reference. Could you quote the part of the decision where the Supreme Court says that, as far as the term is concerned, since the court has no specific figure before it, it invites the parties to come back before the court with a specific figure.
Mr. Tremblay: It is not an invitation from the court, but it does not want to make a decision in the absence of this information.
[English]
The underpinning of what it is that you want. Are you going to say eight?
[Translation]
Senator Joyal: Can you provide that quote?
Mr. Tremblay: I will try to find it.
Senator Joyal: That is one of my questions.
[English]
Mr. Tremblay: The imposition of compulsory retirement at age 75 did not change the essential character of the Senate. However, to answer this question, we need to know what change of tenure is proposed.
[Translation]
Senator Joyal: Yes, that is exactly what I was looking for. The court having no specific numbers, that is to say on reducing the tenure, states that it cannot make a decision. Before concluding absolutely that reform or a reduction in tenure would be legal, the fundamental question must be asked as to whether or not this has the effect of altering one of the critical features of the institution.
Mr. Tremblay: You are absolutely right; there is a magic number, I do not know what it is, perhaps there is more than one, but there is a point at which the court would say: oh! That changes the essential character of the institution.
Senator Joyal: Yes, very well. My second point is on the subject of assent. As you have well said, in my opinion, let us push the reasoning to the absurd that is to say to its extreme: the Prime Minister does not appoint anyone to the Senate for 10 years. The institution would no longer be able to function normally, as it was designed, according to the features given to it under the Constitution. Would it not come to a point where the legislative process itself would become illegal, unconstitutional, based on section 91. I quote:
It shall be lawful for the Queen, by and with the advice and consent of the Senate and the House of Commons. . .
From the moment that the Senate can no longer give its consent or an opinion, the legislation that is passed would be tainted with illegality because it would no longer be the concurrent expression of two forms of consent. Therefore, legislation that would be adopted with an empty Senate would, in my opinion, be illegal and the Supreme Court could declare it so.
Mr. Tremblay: I agree. The Supreme Court said that it was essential to have the opinion and consent of both Houses. It is critical. Therefore, unless the answer is clear: can the Parliament of Canada alone abolish the Senate? The answer is no. Even if we achieve the same result that is to say that there would be no more second or first chamber, let us say that there is one House that is missing, the legislation would not be legal.
Senator Joyal: Precisely. So if we push this reasoning to its extreme, the assent is more than political, it is also constitutional, that is to say that the very exercise of legislative power would be tainted.
Mr. Tremblay: Tainted.
Senator Joyal: Tainted by fundamental irregularities.
Mr. Tremblay: You would have a Parliament, a House of Commons that would be sitting, a government in power whose every piece of legislation introduced would always be illegal, and in fact the Governor General would refuse to give them assent. That is one scenario.
Senator Joyal: We understand each other.
Mr. Tremblay: They have to go to the Senate.
Senator Joyal: Not always, they can be sanctioned in his or her office.
Mr. Tremblay: I am letting my age slip.
Senator Joyal: There is legislation that framed royal assent, that was passed validly by the Parliament of Canada and is now in effect.
Mr. Tremblay: It is interesting that you say that; that means framing royal assent, which means that if we can frame royal assent, we can frame many other things as well.
Senator Joyal: That is what I believe. There are many less important things than royal assent that we could frame.
The third question I wanted to ask you concerns section 42(1)(b) of the Constitution Act of 1982. If you had the opportunity to read the testimony of the professor who appeared yesterday, it is on page 71. I will read this section with you:
Any amendment to the Constitution of Canada dealing with the following issues is made pursuant to section 38(1).
That is the 7/50 rule.
(b) the powers of the Senate and the method of selecting Senators;
The issue, as the professor pointed out in his presentation, is to know what the method of selecting senators is. How is this selection method defined? What would change the method of selecting senators? If we were to change any element of the method of selecting senators, we would find ourselves bound by the general formula in section 38(1), that is to say the 7/50 formula. You said earlier on during your presentation that the Prime Minister may consult whomever he wishes.
But the Supreme Court was very clear in the reference that you mentioned to wit that the election of senators would form a chamber other than the one designed at the outset by the Fathers of Confederation. It would therefore be a basic change in the character of the institution and on that basis, it would necessarily come under section 38(1). In what way can we define the method of selection of senators in your opinion?
Mr. Tremblay: I will start with the drafting of section 42. Look at the capitals. Any amendment of the Constitution of Canada. That means we cannot touch this text without using section 38(1).
It means that I cannot and that there would be no constitutional duty to act one way rather than another. I have not dealt with that, but we are at a prior stage; there is no constitutional obligation for the Governor General to consult with anyone, even by referendum or election, regardless of the means. Is there any constitutional impediment to him obliging himself to consult in such a way? What requires the process you are referring to would be someone wanting to alter this text in the same way that we did when we moved from lifetime appointments to a reduction to 75 years. But if the Governor General were to say before taking decision A or decision B, that I accept popular consultation that will not be constitutionally binding, but that would be a consultation through the constitutional lens, I think that would be as legal as the judicial appointment committees.
Senator Joyal: And judicial appointment committees, as you know, do not limit the prerogative of choosing candidates that are on the list or not. There was a Minister of Justice, Mr. Rock, who committed to not recommending names that were not on the list, but that was valid only for that particular Minister of Justice as another minister recommended candidates who were not on the list.
Mr. Tremblay: I agree with you.
Senator Joyal: Therefore, the limit is not an imperative limit.
Mr. Tremblay: That is the word you are using. That is why I was talking about assent earlier on.
Senator Joyal: I do not want to get into a debate on Bill C-20 or on Bill C-43, but as soon as you start circumscribing discretion, at this stage, you are putting the method of selection into another context, there is a nuance.
Mr. Tremblay: I agree.
Senator Joyal: There is a difference between the two. And that is where, in my opinion, we are bound by the method of selection. Insofar as the Prime Minister can commit to consulting the provinces or a council of respected citizens, et cetera, through letters or otherwise, in my opinion, there would be no constitutional limitation. But when we start to say: here are the candidates and it will only be one of them, and they will be chosen by popular vote, we are changing the nature of the identification of candidates.
Mr. Tremblay: Let us imagine that the Prime Minister came before a next parliament and said: listen, for that to happen, first a statute needs to be interpreted in such a way as to give it constitutional meaning, rather than the other way around, and for it to be constitutional, it cannot be consultative, even slightly consultative. Just like your justice minister earlier, I am here to tell you right away that I am going to appoint who I want, I am going to look at what people have to say, but I am going to appoint who I want. And how would this be sanctioned?
Senator Joyal: Let me turn the question on its head; let us say that there are three nominees chosen through a consultative vote and the Prime Minister does not appoint any of the nominees and decides, instead, to appoint somebody else. Could one of the individuals who has a legal basis as a nominee, given that this would be a parliamentary statute, could such an individual not go before the courts and say I am one of the three nominees and under the act, the Prime Minister had to make his choice from the list of three nominees; and by extension, the Prime Minister has broken the law.
Mr. Tremblay: Well, that brings me back to what I said before. You are taking the argument to the next step.
[English]
At the end of the day, how bound would the Governor General be by such legislation?
[Translation]
Normally, it is an organization that would have discretion in the matter and establish rules. So an individual could say: you have created these rules and I am dealing with you because you created these rules, and since they are your creation, you are bound by your own rules, whether it be the energy commission or any other body.
I am quite sure someone might make a convincing argument and say to the Governor General: you have agreed to be constrained in giving royal assent to this bill, so you are going to have to follow the rules, otherwise it will not be fair. And the Supreme Court could then say: regardless of the wording, at the end of the day, the appointment of another individual would be lawful because the discretion provided for by the Constitution remains.
The Chair: I apologize, but we do not have much time.
Mr. Tremblay: We could spend two days debating this.
The Chair: You are right.
[English]
Senator Di Nino: I want to go back to Senator Joyal's previous comment. It is always interesting to sit as a non-learned counsel at these discussions, which are interesting and educational. Those of us who do not have that training or those skills like to look at it in a more a practical way. Senator Joyal was talking about a situation where, in effect, the Senate would have no members. That is a hypothetical. That is not the issue, not what we are facing today. I do not see what that has to do with this bill, frankly, because we have had situations over the years where there have been more than 14 Senate vacancies, and the Senate has continued to function. I just want to put that on the record.
The question really is at what point in time is those vacancies are an issue. Is it when quorum is no longer available, or is it when there are no senators at all in the Senate?
Mr. Tremblay: Or no one wants the job?
Senator Di Nino: Or no one wants the job. That could well be, Mr. Tremblay.
Mr. Tremblay: It is absolutely true that when you push it to the absurd, there is no answer. If no one respects or fulfils their constitutional obligation, if the director general for elections does not call an election even if the House is dissolved, if the Supreme Court decides never to render any judgments, it is total chaos. You have places where the legislation was perfect but no system is functioning. You need to take people in good faith and assume that the Prime Minister will do his constitutional job. At one point, the Governor General should dissolve the House if nothing happens there. However, if the Governor General does not do his or her job, who dis-appoints the Governor General? You could create a scenario where there is no country any more. I agree with that.
It was all intellectual as to why would it be illegal for the government or Parliament to adopt legislation that would limit the discretion of the Governor General. There were 14 Senate vacancies for years, and at one point, in order to have a piece of legislation passed — for free trade, I think — eight new senators were appointed.
Senator Di Nino: You will agree that that argument will not really impact on this bill. That may happen many years from now, but my suggestion is it will probably never happen.
We are looking at improving the institution. I cannot see how Bill S-224 would be seen as an improvement on the Senate itself. That there are vacancies is an everyday fact of life. Sometimes there are three vacancies. In the 1980s, there were 24 or 26 vacancies and the institution still functioned.
Mr. Tremblay: There is, somewhere, a duty to appoint people to a vacant job. The question is where and when.
Senator Di Nino: Exactly.
Mr. Tremblay: For instance, you have sometimes had vacancies that impacted the Senate to the point where the Chief Justice intervened. There are not supposed to be too many communications between the Prime Minister and the Chief Justice, but it is now dysfunctional because we need someone.
However, where is the sanction? If the sanction is political, and if a Prime Minister does not fulfil his constitutional obligations, what can we do? A case before a court in Quebec could sometimes take months and months. Now, people have learned that it is important for the public to have a full band so that people can have their cases heard, and there is less of that.
However, what do you do if the government does not appoint judges, and people wait for years before their cases are heard? You make a big scene and you defeat the government. This bill wants to give a delay of about six months, a year.
Senator Milne: Mr. Tremblay, to get back to the bill that is before us, in answer to the question of what recourses are possible if a Prime Minister is not fulfilling his constitutional duty to appoint senators, you have said that they are political. I believe the purpose behind this bill, and Senator Moore can certainly tell you exactly, is to address the fact that we now have 13 vacancies in the Senate. By the end of next year there will be 30, and that will definitely affect how the Senate is able to perform its constitutional duty.
How do we force a Prime Minister, who is bound by law to stay in office until at least the next election, for which he has already set the date in legislation?
Mr. Tremblay: Is that constitutional?
Senator Milne: Good question. You are the expert. Let us talk about that very issue, then.
If this bill becomes law and is violated in the future, would the penalties have to be similar in nature to what would be faced if this recent law about fixed election dates is violated in the future?
Mr. Tremblay: I think a court would say that it is mandatory or directory, but it would not oust the Prime Minister from office if he did not do that. We come back to the issue of sanction. What is the sanction?
Senator Milne: Your third point was whether this affects the federal-provincial balance of power? Right now we have provinces and one territory with no representation in the Senate whatsoever. We have a province with only 50 per cent representation in the Senate. How do we get a sitting Prime Minister to proceed and appoint some senators before some of us die?
Mr. Tremblay: I am looking around. I think you will be around at the next election.
There is no legal way to do so. The problem is that, when you start touching this thing, other issues are raised. What you are saying could be solved only if we had, for instance, the American system where everybody is elected for a fixed term. Then it is all right. There are no vacancies ever because they are elected for a fixed term.
The other side of the coin is that I do not like piecemeal legislation, where you fix it here, fix it there; but in our country, if you do not do something a bit piecemeal, you do nothing, because it takes a century to move anything, especially in constitutional matters.
Senator Milne: Perhaps especially with this Prime Minister.
Mr. Tremblay: I will not go there. I want to be appointed to the Senate.
Senator Joyal: You are not running for election.
Mr. Tremblay: I am no longer running. I have been elected now.
Senator Moore: Thank you for being here, Mr. Tremblay. I have a number of questions.
Senator Andreychuk alluded to one reason that she perceived for me to have brought this bill forward, and that is the issue of whether the Senate can function properly with so many vacancies. Senator Milne said that next year there will be up to 30 vacancies.
Yesterday, in his testimony before us, Professor David Smith told us that there is a duty to appoint. The Constitution does not say "may" but "shall." Do you agree with that?
Mr. Tremblay: Yes, but the problem is when.
Senator Moore: Exactly. When a vacancy occurs.
Senator Murray: Section 32 states: "When a Vacancy happens."
The Chair: How do you reconcile sections 24 and 32? Section 24 says "from Time to Time" and section 32 says "When a Vacancy happens."
Mr. Tremblay: This is inconsistent. If it is "from Time to Time," what does that mean? Was it only applicable at the beginning because after that it was only vacancies?
The Prime Minister could have taken 10 years at the beginning of the Confederation because it is "from Time to Time," but the minute you have someone, there is a "shall."
Senator Murray: "When," yes.
Mr. Tremblay: But is that the following day?
Senator Murray: That is what we are trying to determine.
Mr. Tremblay: Section 33 is also very interesting. It is even more inconsistent. If it is totally discretionary on the part of the Prime Minister or the Governor General to appoint a senator, how is it the business of the Senate to decide that a senator is not qualified?
Senator Moore: I do not know, but can I get back to the bill? You hinted that if this bill became law and the Governor General did not respect it, there would be no way to sanction a failure to comply except by way of public sanction or general election. Yet, such a provision already exists with respect to the House of Commons, where the Governor General is obliged by statute to exercise the prerogative in 180 days. Why should the same not apply to the Senate?
Mr. Tremblay: That is fine if the act says it must be done within six months. My point was, whether it was the one you just quoted or the one you proposed, what is the sanction if the Governor General does not. It is not particular to that case; it is a general political system.
Senator Moore: I am not happy with governments of any stripe not having filled these vacancies. I will touch on the House of Commons aspect of my bill in a moment. I do not care what political stripe — they have all ignored and abused the rights of the people to have their proper constitutional representation in a timely way in both Houses. I do not think that years and years of waiting are right. I do not think that is what the Fathers of Confederation contemplated. In a modern democracy, I do not think it is reasonable to expect that that is what should prevail.
Based on your approach, would you say that Parliament was making a constitutional amendment when it created the provision in the Parliament of Canada Act to require the Governor General to cause elections within 180 days?
Mr. Tremblay: No.
Senator Moore: That provision has never been challenged?
Mr. Tremblay: No.
Senator Moore: When I worked with my colleagues to put this bill together, I looked at that. I thought it was a reasonable approach, and that is why I put it in. I wanted to make sure this bill was on the same solid constitutional footing. Do you have any comment about that? Do you think I am on good constitutional footing?
Mr. Tremblay: I agree with you. It is like your royal sanction, which is now regulated by an act of Parliament. Normally with a royal sanction, the Queen decides if and when to do it. That is not how it works. That is why I was pointing at section 42 of the Constitution. That means this piece of paper. If it is something short of touching that piece of paper, then what is it? I suppose that Senator Joyal's argument could be that you are doing indirectly what you cannot do directly. It is tantamount to a constitutional amendment because you are binding yourself to something that does not bind you in the act itself.
Senator Moore: Another reason I brought this bill forward is the whole idea of the right of people to have representation in both Houses. Senator Milne mentioned a vacancy in the Yukon. Those people have not been represented since December 2006. British Columbia has only half of its constitutional complement. Nova Scotia, my province, has three vacancies among our ten seats. I think also of the House of Commons and the abuse of the discretion of the Prime Minister calling by-elections not sequentially. We had the Roberval situation within 13 days, but seats in Toronto have been empty for nine months. Again, the citizens are denied representation.
Mr. Tremblay: That is more political than juridical, but I agree that it is abnormal in our system for portions of the population to be unrepresented for any amount of time. That time should be as short as possible. How can you force someone's hand?
Senator Moore: I am trying to put in place a provision that will respect and respond to the right of the people and not the right of one person — regardless of who occupies the office of Prime Minister. My concern is that the people of Canada have representation in both Houses, which they are entitled to but not getting.
Mr. Tremblay: I am talking about the legality here. You are talking about the political side. As a citizen, what you are saying makes sense.
For example, to call an election is the exclusive prerogative of the Prime Minister. He looks at the polls and feels it is the correct time, whether or not it is good for anyone other than him as he tries to get his party re-elected. It has been the British tradition for centuries and that is how it is done. In the U.S., the election date is fixed.
Senator Moore: We heard yesterday that that is not quite the system now. I am thinking of by-elections, which are part of that bill.
Mr. Tremblay: At least when he calls elections, it is elections for everyone.
Senator Moore: Yes.
Senator Murray: I want to go over with the witness the four questions that he posed to see if my understanding of his answers is correct.
First, does this bill affect the complete discretion that you say the Constitution otherwise gives to the Governor General? Your answer to that is yes.
Second, can the Governor General acquiesce in limiting her own discretion? The answer to that is yes.
Third, if the Governor General does so, would the proposed legislation affect the constitutional balance? That is, is this within our power as a Parliament of Canada? The answer to that is yes.
The fourth question is one of sanctions, which, I think you say, are entirely political.
For the record, given the requirement that a government must issue a writ for a by-election within 180 days of the vacancy occurring in the House of Commons, if the government fails to issue that writ, what happens? Does the Governor General, on her own initiative, issue the writ? Or does someone go to court and demand a judgment from the court that would require the government to issue the writ?
Mr. Tremblay: That is very interesting. I know of one case from Australia where an injunction was issued. It is always parliamentary sanction, but in this case, an injunction was issued. There is also the Air Canada case, where the court says, "I order the members of cabinet to advise the Queen to go in that direction." Suppose that they do not. Do they all end up in jail or are they given a fine?
Senator Murray: Presumably, that is the same sanction that would exist with regard to Senate vacancies under Senator Moore's bill.
Mr. Tremblay: But you advise the Governor General, and the Governor General says no. The apex of the pyramid would not respect the law.
Senator Murray: In that case, the Prime Minister resigns and maybe the Governor General cannot get someone else to carry on the business of government.
Mr. Tremblay: A crisis over crisis.
Senator Moore: I want to touch on something Senator Andreychuk alluded to. I think she is saying that this bill would affect the appointment process and thereby impact on the federal-provincial balance of power; therefore it would be improper, and a constitutional amendment would be required. Let me suggest to you that by acquiescing, by not acting, by not having our constitutionally-provided-for membership in the Senate, in my case of Nova Scotia, and other people can speak for their own regions, we do not have our proper balance of power. We do not have our 10 people. It is the not acting that creates the disturbance of the balance that was provided for, which is what I am trying to achieve here.
Mr. Tremblay: I agree. I understand your concerns, and many Canadians share them, I am sure. The issue is that some people say that if you touch this thing a little bit, you have to touch it all with everybody concerned around the table. Is it internal? Can we do it without talking to provinces, or should the provinces be invited to the table to resolve this issue? That is all it is. In principle, I am 100 per cent in favour of having people represented all the time.
Senator Moore: That is what the Constitution says. "Shall" does not mean take a year or two or three. That is not "shall." That is ragging the puck.
The Chair: Colleagues, our next witness will be Professor Errol P. Mendes from the Faculty of Law at the University of Ottawa. We are, as we all know, limited to time. This is another extremely learned witness who has given the Senate the benefit of his understanding and experience more than once. Welcome back, Professor Mendes. You know the drill. You make a statement, and then we get to ask you questions.
Errol P. Mendes, Professor, Common Law Section, Faculty of Law, University of Ottawa, as an individual: Thank you. I was just asked by Mr. Tremblay whether I agree with everything he said. In fact, it is the opposite. I will disagree with almost everything he said.
Thank you, Madam Chair, for inviting me. It is an honour to discuss with you some of the most critical issues facing the Senate of Canada.
I will be addressing only the part of Bill S-224 that seeks to amend the Parliament of Canada Act to require the Prime Minister, within 180 days, to fill a vacancy. I do not have the time in this presentation to address the other aspect of the bill, but I will be happy to comment on it in the question period.
Let me begin by suggesting that anyone directly or indirectly attempting to affect the workings of the Senate in its most important deliberative functions must have foremost in his mind the rulings of the Supreme Court of Canada regarding the scope of what is termed "parliamentary privilege." This area has not cropped up in the discussion but should now be front and centre in your discussions on Bill S-224.
In particular, it is hoped that the Prime Minister of Canada and his cabinet take into account a decision of the Supreme Court of Canada, which has not got a lot of attention: New Brunswick Broadcasting Co. v. Nova Scotia. In this decision, the Supreme Court held that parliamentary privilege was a set of powers and privileges that are necessary to the capacity to function as legislative bodies and are an integral part of the supreme law of Canada, the Constitution of Canada. The court went even further and suggested that this scope of parliamentary privilege, the Senate's powers, is so important that it is on equal footing with the Charter of Rights and Freedoms. That shows how critical it is for you to focus on the scope of your parliamentary privileges as senators.
I have, before this committee and just yesterday in the House of Commons committee on Bill C-20, indicated that any attempt at Senate reform must clearly address whether or not the parliamentary privileges of the Senate are affected. I drew attention in particular to section 38 and section 42, that the powers of the Senate and the method of selecting senators require consultation by the provinces and require ultimately the amending formula to be followed under section 38, seven provinces representing 50 per cent of the population. How would it be any different if a Prime Minister attempted to undermine the Senate's privileges by not filling in vacancies to such an extent that the work of the Senate in its deliberative functions in committees and elsewhere became extremely difficult and perhaps even started to break down? Could a Prime Minister who was re-elected over a very long period even abolish the Senate by stealth by not appointing any senators? It should be noted that the prerogative and constitutional powers of the Prime Minister can be abolished or amended by statute, which is what Bill S-224 is attempting to do.
Some might argue that the present Prime Minister is beginning a very dangerous journey to undermine the Senate by the number of vacancies that now exist in the Senate. There are presently 14 vacancies in the Senate, three in each of Nova Scotia and British Columbia, so 50 per cent of British Columbia's representation is missing. Think about what the founding parts of Canada would have said at the beginning of Confederation if they were told by then future Prime Minister Sir John A. Macdonald, "At some stage, you will be entitled to only half of your representation." Would we even have a country if that had happened?
I give you a table in the handout showing that these vacancies have existed for a long period of time, even, I stress, going back to the previous, Liberal government. The second-longest one is Viola Léger's vacancy, which is now 1,121 days, and the longest is Eileen Rossiter's vacancy, which is now 1,371 days. In addition, there may be three more vacancies this year and possibly twelve more next year, and Senator Moore has tallied the possibility of at least 30 vacancies by 2009 if not more if other resignations follow.
If these vacancies are not filled, in effect, the Senate is being slowly throttled by not only an irresponsible neglect of fundamental, constitutional duties, but potentially becoming unconstitutional behaviour. Would anyone argue that it would be unconstitutional for a very long-serving Prime Minister to, in effect, abolish the Senate by not filling any vacancies until there were no senators left? In effect, this would also be bringing the House of Commons to a standstill, as all legislation requires the approval of the Senate before Royal Assent.
The current Prime Minister has named two senators: Senator Fortier, for political representation in the cabinet, and Senator Brown, who was appointed because it fitted in with the Prime Minister's view of how senators should be appointed to the Senate. This again prompts discussion as to whether this is the real purpose behind not filling vacancies. The threat is, "As long as you do not agree with me as to how senators should be appointed, I will slowly throttle you." If that is the case, it is another indication of unconstitutional behaviour.
I will leave out some of my presentation in the interests of time and go on to page 4. I strongly support Bill S-224 because it is an attempt to get the Prime Minister to do one of his most fundamental, conventional and prerogative constitutional duties: to protect the Parliament of Canada as a proper, functioning, deliberative body. Not requesting the Governor General to fill vacancies as they occur, as you have mentioned, in accord with section 32 of the Constitution Act is, in my view, a violation of the Constitution of Canada.
Therefore, Bill S-224 should be regarded as a reasonable attempt to legislate the parliamentary privilege of the Senate to carry out its most critical functions as a deliberative body in the Parliament of Canada. Given the very long period during which vacancies have been not filled, as I have indicated in my table, the Prime Minister surely has sufficient, fit and qualified persons to come within the 180 days that Senator Moore has recommended.
As Senator Moore also pointed out, if the Parliament of Canada Act has a requirement that the Prime Minister must call a by-election for a vacant House of Commons seat within six months, there is no reason why the other House of Parliament should not have a simple drop-dead date by which the Prime Minister must exercise his prerogative powers to recommend to the Governor General appointments to the Senate.
I must stress that these are prerogative powers. They can be overridden by statute. That statute can be enforced by the courts, and I can give you case law. I am surprised Mr. Tremblay did not understand that a statute can be enforced in the courts by interested parties.
Bill S-224 is a legitimate attempt to statutorily curtail the misuse of the prerogative and conventional powers of the Prime Minister to undermine the proper functioning of the Senate as a deliberative body by not requesting the Governor General to appoint qualified candidates. To allow the present Prime Minister to slowly strangle one of the Houses of Parliament is a profound violation of the fundamental principles of Canadian democracy.
Senator Andreychuk: Thank you, Mr. Mendes. You certainly are provocative. You seem to have based your assessments on some negativity about this Prime Minister. Would that be correct?
Mr. Mendes: If you call negativity attempting to change the Constitution by stealth, then yes, that is negative.
Senator Andreychuk: You have come to the conclusion that it is by stealth and not by incremental means. We have had great debate in this country about the fact that changing the Constitution is not as easy in Canada as elsewhere. We have had reflective, thoughtful debate about whether one does so as a package or incrementally.
Mr. Mendes: Have you had reflective, thoughtful consultation?
Senator Andreychuk: I asked the question and I would like an answer.
Mr. Mendes: I will answer the question. Take Bill C-20 as an example. Have you had any consultation with any of the provinces on Bill C-20? You know that major provinces like Quebec and some of the Atlantic provinces have clearly stated their opposition to Bill C-20. Ontario has as well.
That represents, in my view, more than 50 per cent of the section 38 provinces, the seven provinces. Therefore have you really done that thoughtful, careful consultation with the partners in Confederation? My answer to that is clearly not.
Senator Andreychuk: You are talking about Bill C-20, on which you have just given some evidence to the other side, and you are basing it on that. I am talking about Bill S-224.
You have come to the conclusion, despite the fact that there have been many prime ministers who, for motives, reasons, or objectives that may or may not have been laudable at the time, have not filled vacancies quickly, that this is the crunch moment that this bill is necessary. You are basing that conclusion on future actions. You asked whether a prime minister who is re-elected over a very long period could even abolish the Senate by stealth by not appointing any senators.
We now have elections every four years. We have had witnesses say that the sanction would be political. Therefore, are you basing this on legal premises or on political premises? I would agree with you, if you make your submissions on the political ground that you do not particularly like what is happening now and therefore you want to change it.
Mr. Mendes: I base it on the fundamental legal premises of the Constitution, which include the notion of parliamentary privilege that requires both Houses of Parliament to be able to carry on their functions as deliberative bodies. That is the core of your functions. If, over time, you are deprived of the ability to do that in committees, if you are deprived of the ability to actually scrutinize your constitutional duties in terms of legislation, that could not be more legal. That is part of the fundamental legal constitutional basis of the Senate of Canada.
Senator Andreychuk: That is precisely what I would like you to address. There are 14 vacancies now. Portions of your presentation talk about the future, and we may have a totally different situation in the future which may warrant some action.
Are you saying, from a legal point of view, that 14 vacancies gives legitimacy to Bill S-224, but four vacancies, say, would not?
Mr. Mendes: I will put forward to you, Senator Andreychuk, that one of the fundamental duties of legislatures is to look at not only the present danger but also the future danger. That underlies almost every piece of legislation that you have scrutinized. It would be very unusual for a Senate to focus only on a present danger and not look at the consequences of future dangers arising from legislation.
If it is clear that there is a present future danger, which could arise as close as the end of next year when there may be 30 vacancies, it is clear that the danger then is one that this Senate is correctly apprised of dealing with and putting forward proposals.
Senator Andreychuk: I am asking you at what point those dangers arise. You have showed us the threats that we will not be able to do committees or pass legislation, and so on. I want to know at what point that is. Is it at 14 vacancies that we are now not doing our job and cannot do our job, or is it in the future, and if in the future, at what point?
Mr. Mendes: I will suggest that it is a very present danger for two reasons. First, as I mentioned, if you go back to the 1864 deliberations of the resolutions that created the British North America Act, there was greater focus on the Senate than there was on the division of powers. Part of the deliberations was the representation of the founding provinces in Confederation. Is it not a present danger that British Columbia now has 50 per cent of its representation? Is it not a present danger that the Atlantic provinces, one of the founding partners of Confederation, are down to one or two senators now?
My answer is that, given the founding partners of our Constitution, the present danger exists right now. The lack of the territories not having any representation is a present danger.
Senator Joyal: There is an essential element that we cannot ignore on both the follow up and the questions raised by Senator Andreychuk. In the past there were 12 or 14 vacancies. However, the fundamental difference between then and now is that we currently have a Prime Minister who has stated quite clearly, repeatedly, that he will not recommend to the Governor General until either of two things occurs: either the provinces adopt a so-called consultation or election of senators, such as the Alberta Election Act, which I think is unconstitutional and invalid; or Parliament adopts a mechanism to "consult" — that is to say, elect senators — which I think is reasonably held by some parliamentarians and senators and by a large number of provinces representing more than 50 per cent of the Canadian population, Quebec, Ontario and New Brunswick and probably Newfoundland, to be a mechanism to change the method of selection of senators under section 42(1)(b). This Prime Minister we have now stated that he will not recognize that, holding the institution as a hostage. That is a different situation than a prime minister not caring to appoint. It is not about not caring; rather, there is a specific purpose, which is either to compel provinces or to go in a direction that provinces have stated clearly they question the legality of. Provinces said that if that bill were to be adopted, they would challenge it in court. We are in a different context than just a careless prime minister not bothering about the Senate and not thinking it is important enough in the legislative process.
Mr. Mendes: That is the core of the reason I think your rights as parliamentarians and senators are being undermined in terms of your privileges. If that is on the record — and I am not sure where he said it or when — then it is clear evidence that your parliamentary privileges are being violated.
Senator Joyal: That is why the argument of Senator Andreychuk is valid. We know now, if there is a general election only in October 2009, according to the predictability of retirement — and there is predictability because there is a compelling date of retirement — exactly when this house will be short almost one third of its membership and that some regions will be directly affected under regional representation because a majority of seats will become vacant. That is why I think there is a specific context into which this bill is put, and the bill must be seen and evaluated or analyzed in the political context we are in.
To return to the essential element that you stated, the constitutional element, can Parliament frame a prerogative power? If so, under which conditions? How have the courts interpreted the framing of the prerogative power? This is one of the key questions that underpin section 32 or section 96 of the Constitution. Let us stay with section 32 because I think it is the section of the Constitution that is under consideration in Bill S-224. It is a fundamental issue, it seems to me, that we must be satisfied that Bill S-224 is a reasonable answer to the conditions of the framing of the prerogative.
Mr. Mendes: It is absolutely possible to frame the exercise of the prerogative and a conventional power. It is done all the time. There is nothing to stop Parliament passing statutes that limit or curtail the prerogative powers. That is a clear constitutional principle. Ordinary statutes can override and curtail prerogative powers.
Senator Joyal: In this case, in your opinion, Bill S-224, which in a way is the framing of the prerogative of the Prime Minister to recommend to the Governor General in a specific period of time, is within the Parliament of Canada's capacity to introduce a bill and to accept a bill that would limit the time frame within which the Prime Minister exercises a prerogative to recommend to the Governor General a candidate for a Senate position.
Mr. Mendes: Absolutely. If you go into the historical background of the prerogative powers, the reason Parliament in Great Britain came into existence was to curtail the prerogative powers of the monarch. That is the role of ordinary statutes, to reflect the democratic will of the people to determine the residual power left to the monarch. This is one more example of that. It happens all the time. I do not understand what the problem is in terms of the ability of Parliament to limit or curtail the exercise of the prerogative power.
Senator Joyal: An argument can be made to the contrary, because before Confederation there was an elected legislative council. In other words, they framed the prerogative of appointment of legislative counsellors when Confederation took place. When the British North America Act was adopted, the prerogative was reinstated with a certain number of limitations that we have in terms of age, qualification and so on.
In other words, we can do and undo the prerogative that might be the privilege or the purview of the Crown.
Mr. Mendes: Absolutely. Keep in mind that the very office of the Prime Minister is a conventional device, apart from one very tiny reference to it in the 1982 Constitution. The entirety of our system of responsible government is, in some respects, based both on conventions and prerogative powers, but that has not stopped us, over the history of this country and over the history of Great Britain, to legislate parameters to that.
Senator Joyal: In your opinion, at which point would the framing of the prerogative of the Prime Minister affect the position of the Governor General? As you know, section 41 of the Constitution provides that the unanimity rule applies if we are touching the office of the Queen. At which point does a change in the prerogative under section 32 affect the office of the Queen, that is, the Governor General?
Mr. Mendes: In my view, you are not so much affecting the prerogative of the Governor General. Keep in mind that, while she makes the appointment, it is the recommendation part that you are dealing with right now. That is purely a conventional power of the Prime Minister. There is nothing to stop you from legislating on the conventional aspect of the appointment process to the Senate.
Senator Joyal: In your opinion, this bill does not affect the power of the Governor General — that is, the Queen — under section 41 in relation to the office of the Governor General.
Mr. Mendes: No; I do not think so. It is the way that the recommendation is made to the Governor General.
Senator Joyal: I asked that question clearly because I think it is important to the fundamental structure of the whole exercise of appointing a senator. There are a certain number of constitutional questions that we must ask ourselves in order to come to the conclusion that this bill is constitutionally valid.
Mr. Mendes: Yes; I agree.
Senator Joyal: Similarly, when the Prime Minister introduced Bill C-20 or Bill C-43, we must ask ourselves at which point the bill might be constitutional or unconstitutional or at which point are there questions that need to be answered, and then, of course, we need to seek outside opinion from the court.
The Chair: You are correct; this is a core element. Do you think we have covered it, at least on the first round?
Senator Joyal: Yes. I will reflect on it.
The Chair: I believe you said you had case law in connection with the prerogative. I will not ask you to cite it now.
Mr. Mendes: I think one of you asked Mr. Tremblay if there is any way you can enforce a statute.
The Chair: Could you give those references to the clerk so that we can circulate them?
Senator Di Nino: I will leave the technical questions and discussions to those better qualified than I. However, it seems to me that you phrased your whole presentation this morning with the suggestion, indeed maybe even a verbal fabrication, of a potential crisis. I think you talked about future danger. Those are very strong words. I suggest to you that that is probably inappropriate at this time. We do also run the institutions from past practices and past conventions, and I think you would agree with me that in the past 20 or so years the body called the Senate of Canada has had vacancies much greater than the 14 that exist today. Is that correct?
Mr. Mendes: Yes.
Senator Di Nino: Under Prime Minister Mulroney, it was something like 24 or 25, and the Senate seemed, maybe with a little extra effort, to conduct itself and do its business reasonably well. Am I correct?
Senator Moore: He would not know that.
Senator Di Nino: He has expressed the opinion that there will be a huge crisis.
Mr. Mendes: There is a present crisis in terms of representation, which is the foundation of this august body. I made the same answer to Senator Andreychuk and will say again that there is a present crisis because 50 per cent of British Columbia is not represented and there is no representation from the territories. That is a present crisis.
Senator Di Nino: Would you agree that, if you call this a crisis, there have been a number of occasions in the past that were at least as bad if not a worse crisis, and the Senate functioned?
Mr. Mendes: The added function is what Senator Joyal indicated, which is that there is a stated intention that this will get worse. If it is on the record, I have not seen it, but if it is on the record that there will be no further appointments unless he gets his way, that is a crisis.
Senator Di Nino: That was going to be my next question. Frankly, I have never heard this Prime Minister say that he would allow the Senate to become dysfunctional or allow the Senate to reach a point where it could not function. I have never heard that, and I would like to see it. You have not heard that either, have you?
Mr. Mendes: I am repeating what Senator Joyal said. The difference now is that this pattern will continue as long as the advisory elections — which I think is also unconstitutional — are not passed by this Parliament.
Senator Di Nino: It is also true, is it not, that this Prime Minister has made two appointments in the short two-plus years he is been in power, so he is appointing people.
Mr. Mendes: I would suggest that they are there for two very interesting reasons, one to have political representation in the cabinet and the other to be a reflection of his position that unless there are advisory elections he will not appoint.
Senator Di Nino: For whatever reason, the fact is that he has made two appointments in the period of time he has been there.
Mr. Mendes: It is very interesting what the reasons are.
Senator Di Nino: I appreciate that.
Senator Milne: Professor Mendes, you say that statutes clearly can curtail the prerogative powers of the Prime Minister.
Mr. Mendes: Yes.
Senator Milne: To come around to Senator Andreychuk's question, and mine as well, what are the possible sanctions? If we pass this bill and the Prime Minister still does not do what his constitutional duties require him to do, what are the possible sanctions, other than political?
Mr. Mendes: If a statute has been duly passed by Parliament and mandates the Prime Minister to fill vacancies, as section 32 says, on a vacancy arising, jut as if he disobeyed the equivalent provision in the House of Commons, anyone could go to court, under the public interest standing rules, and ask for either a declaration or one of the administrative remedies to force the Prime Minister to do it. It has happened in the past, and it could happen in this situation too.
Senator Milne: What, then, are the administrative remedies? Would the Governor General to do it on her own?
Mr. Mendes: No, it would be directed towards the Prime Minister. It would be shocking if a Prime Minister disobeyed a declaration from the courts of this country. It would be a direct violation of the rule of law.
Senator Moore: Thank you, professor, for being here. I want to touch on the point Senator Andreychuk seemed to be focusing on with regard to the current 14 vacancies and the Senate's being able to function and what is the critical number. Others have mentioned that within a year there could be as many as 30 vacancies. That is only one aspect of this.
One of the main reasons for my initiating this bill is the constitutional right of the people of Canada to have representation in both Houses of Parliament. You mentioned the Maritime region. We are entitled to 24 senators under the Constitution, and we now have five vacancies. We are down almost 25 per cent. The functioning of the Senate in terms of doing its job, committee work and having the manpower to do all that, is one aspect of it, but before that, the reason my province entered Confederation was a compromise, and the Senate and the filling of those seats is the compromise that we agreed to. If a prime minister wants to reduce Nova Scotia's representation in Parliament, is it legitimate for him or her to achieve that by attrition rather than by an amendment to the Constitution?
Mr. Mendes: This goes back to the discussion that you had with the previous witness and with me. Section 32 clearly says that the Governor General shall appoint on a vacancy arising. I link that to the concept of parliamentary privilege, which means that when you refuse to appoint when a vacancy arises, and when that has the effect of undermining this body as a deliberative body, plus undermining the adequate representation of the partners in confederation, you have a serious constitutional problem.
The Chair: Colleagues, we will be going in camera for a short period of time, maximum five minutes, so there is certainly time for a second round.
Senator Andreychuk: I want to go back to my point, because I am preoccupied with Bill S-224. If the Prime Minister made no statement, although you claim he has —
Mr. Mendes: I have not claimed. I said I heard Senator Joyal say that.
Senator Andreychuk: Let us assume there are no statements made by the Prime Minister. We just have no appointments, no statements whatsoever and no Bill C-20. Would your position still be that we are at a point of crisis? I am asking for an academic and a legal point of view. Take away Bill C-20 or any other bills floating around somewhere about changes in the Senate, and no statements from the present Prime Minister or anyone about changes in methodology. As Senator Moore is saying, he has a bill here because of 14 vacancies and the duty to appoint. I do not want to misrepresent Senator Moore's point.
Senator Moore: I will not let you.
Senator Andreychuk: Good. I knew you were a good lawyer.
As I understand it, the point of the bill is that "shall" means now, and having 14 vacancies warrants moving on this bill.
Mr. Mendes: Again, I refer to section 32, shall appoint on a vacancy, and I tie in Senator Moore's comments adding that some provinces now are down to 50 per cent of their representation. You link the two together, and even if there were no other statements by the Prime Minister and Bill C-20 did not exist and Bill S-4 did not exist and Bill C-19 did not exist, it is still the same issue.
Senator Andreychuk: Therefore would it have been the same issue with other prime ministers?
Mr. Mendes: Absolutely. I put the table before you, and I think it is legitimate to say that even under Liberal administrations, these vacancies have gone on for too long. I basically stated that this should be changed both for Liberal and for Conservative administrations.
Senator Andreychuk: Or any other party that may come along.
Mr. Mendes: Yes.
Senator Joyal: I have a comment on this point. I think the Prime Minister himself, when he appeared at the Special Senate Committee on Senate Reform, the Hays committee, is on the record in answer to that question.
Senator Oliver: It was a hypothetical.
Senator Joyal: Of course. I only wanted to add that.
Mr. Mendes, I have a slight nuance to your introductory remarks in relation to the powers and privileges of the Senate, and including the membership on the Senate within the definition of the powers and privileges of the Senate.
It might look a little nuanced but, as I understand, the privileges of the Senate are the sets of special powers of the Senate to be able to perform its legislative duty as much as the House of Commons enjoys the same power and privileges under section 18 of the Constitution. You know this very well; you quoted it. In the Vaid case, the Supreme Court of Canada unanimously ruled on that quite recently.
You include in those powers and privileges the membership or the composition of the Senate. I do not think we are in the realm of the power and the privileges, unless I misread or misunderstand your presentation. There is a nuance, in my humble opinion, to the power and privileges versus the composition.
Mr. Mendes: It is basically a logical set of analyses asking this question: When does the lack of sufficient senators affect your ability to perform your critical functions? It is more a logical exercise. Will it reach a point where you will not be able to perform your critical functions because of the lack of appointments?
Senator Joyal: I agree. However, it is our duty to give our advice and consent under section 91 of the Constitution, as you know, to the legislative powers. It is essentially an exercise in which you have to two concurring on advice and consent to one specific bill.
Mr. Mendes: That is right.
Senator Joyal: Then the Governor General or the Queen legislates. It is the Queen who legislates, but only on the concurring advice and consent. It needs both at the same time, on the same issue.
When you arrive at that element of consent, you need a specific power. For instance, you need freedom of expression. You cannot be sued in court for what we say here around this table. It is a very specific power, in our deliberative function trying to understand a bill, trying to debate a bill, trying to exercise the democratic debate, which is opinion, counter-opinion, replica and so forth as the court has defined democratic debate.
Therefore, the composition of the chamber of the Senate or the composition of the House of Commons is not an essential element of the privileges; it is not a specific power. It is an essential element to achieve, of course, the consent. If there is no one around the table, there is no consent or advice.
Mr. Mendes: Absolutely. That is why that logical conclusion has to be that.
Senator Joyal: I think that if the Senate were deprived of an opposition party, there would be a fundamental convention also breached in our democratic system. As the Supreme Court has said clearly, the preamble of the Constitution provides for arguments and counter-arguments. I think we would probably be faced with exactly the same Bill S-224 if one of the parties represented in the Senate were to be totally deprived of its membership.
Mr. Mendes: That is the logical conclusion that I have tried to draw.
Senator Joyal: You understand there is a nuance between the composition of the Senate and the specific powers and privileges that the Senate has, as much as the House of Commons, to express its advice and consent — that is, to deliberate, to exercise its legislative function. That is why, when I read and listen to your presentation, there is a nuance we must make sure that we understand.
Mr. Mendes: I agree.
Senator Murray: I want to add briefly to the arguments that you have made, Professor Mendes, regarding the seriousness of the situation. That British Columbia has only 50 per cent of its representation in the Senate at the moment is a gravely urgent situation. Getting more serious is that Nova Scotia is missing three of its representatives, and even little Prince Edward Island, which sets great store by its Senate representation as a balance to representation by population, is down by 25 per cent.
There are other aspects of the situation, actual and potential, that are perhaps more familiar to those of us who sit in this place. For many years we were concerned about what happens during long periods of one-party domination when the ranks of the official opposition in the Senate get dangerously thinned out. When Mr. Diefenbaker became Prime Minister after 22 years of Liberal rule, there were I think six or seven members in the official opposition. No one can pretend that the Senate functioned as it should as a proper legislative body under those circumstances. I remember it and I remember that the Senate would shut down for three weeks at a time, if it pleased it to do so.
When Mr. Clark became Prime Minister, there were 10 or 12 Progressive Conservatives left. He was able to appoint 11.
None of us ever foresaw a situation in which the government would be reduced to a quarter or fewer of the seats in the Senate. However, that is the situation we face today. The government members are very thinly spread across the many active committees that we have; they are too thinly spread. I make no comment and, if I had a comment to make, it would be positive one about the quality of those who are left. However, they are too thinly spread across committees.
It is a convention that it is the responsibility of government senators to maintain quorum. I am telling you that on most days the government senators could not maintain quorum in this place. It is only because of mostly Liberal senators and a few independents that they are able to maintain quorum.
"Crisis" may be too strong a word to describe the situation today, but it is heading in that direction inevitably and inexorably under the situation that we now face. At one point when the opposition ranks were very thin we discussed trying to establish a convention where the government would agree that we would never allow the opposition ranks to diminish below one third of the members of the Senate.
The problem now is that the government ranks are too thin to provide proper leadership to the Senate.
There is a serious problem today. It is urgent in how it affects British Columbia and is affecting Nova Scotia, Prince Edward Island and Newfoundland and Labrador in terms of representation. It is a growing problem heading for crisis as matters now stand.
Mr. Mendes: I agree with you. That is why, in my discussion with Senator Joyal, I said that you must start thinking about your privileges. Having quorum is part of your privileges. You can see how my logic takes me to that step.
The Chair: Colleagues, I will close this portion of this meeting at one o'clock. We will then take less than five minutes for a meeting in camera, which will give us ten minutes before the bells begin to ring. With that in mind, colleagues, we have Senator Moore and a final question from Senator Joyal.
Senator Moore: Professor Mendes, you mentioned at the outset of your comments that you did not have time to address the part of the bill that deals with the sequential calling of by-elections in the House of Commons. However, you said that you would be prepared to answer questions about that issue.
Recently, in the riding of Roberval—Lac-Saint-Jean, the elapsed time between vacancy and writ was 13 days and the time between the vacancy and voting day was 50 days. In the riding of Toronto Centre, the time between vacancy and writ was 172 days and the time between vacancy and voting day was 259 days. Do you think that situation is proper in a modern democracy?
Mr. Mendes: No, I do not, and I will tell you why. I do not think that democracy should be a kind of wrestling match where you basically try to wrestle your opponent into a corner and see what happens. We have inherited our democratic system from Great Britain. Obviously, countries like Great Britain have come to the conclusion that that situation should not go on, and they have put in a limit of about 90 days, if I am correct.
Senator Moore: No, it is shorter than that.
Mr. Mendes: Maybe it is shorter. That occurred in Great Britain because of the understanding that, ultimately, if trust and the avoidance of cynicism by the public are to prevail, you cannot have these types of World Wrestling Federation political tactics that force opponents into a corner and then try to get advantage out of it. That is more a political argument than a legal one, but given that the preamble to our Constitution clearly states that our Constitution is similar to Great Britain's and given that Great Britain has gone through this process and has come to the conclusion that this should be changed, then I think we should take a serious lesson from that.
Senator Moore: Do you have any comment with regard to the Commons by-elections in light of my comment about the constitutional right of citizens to have representations, in this case in the House of Commons? I do not see why one group of people should have a member representing them within 50 days while another group has to wait 8 or 9 months.
Mr. Mendes: That, unfortunately, I think is more a misuse of democratic powers rather than a constitutional violation. However, I think we should take that situation very seriously. If our mother Parliaments have looked at it and gone to a different system, then we should take that seriously.
What do we want to achieve with this type of game playing? When you see the turnouts in elections these days, that should be one of the most worrying aspects for anyone interested in keeping our democratic system stable. The turnouts in Alberta, and potentially now in other provinces, is something to be really concerned about. Why is that? It is because of the increasing cynicism and lack of trust by the population in the games that are being played.
Senator Moore: Did you look at that aspect of Bill S-224, or did you just focus on the Senate?
Mr. Mendes: As much as I support what you are doing, I would recommend splitting it because there is less of a constitutional focus on the by-elections than there is on the Senate. I think you have a strong piece of legislation if you focus only on the Senate and discuss the differences between the practice now in Great Britain and ourselves on the political level.
Senator Moore: We had evidence yesterday about that from other witnesses.
Senator Joyal: Professor Mendes, I want to draw your attention to the element that I was referring to in my earlier question regarding the need for contradictory debates in the chambers of Parliament to maintain democracy. I want to refer you to the Supreme Court decision of 1938 in the Reference re Alberta Statutes case, a very famous case presided over by Justice Duff. I am sure that Professor Oliver will know who Justice Duff is. I am quoting from Protecting Canadian Democracy. In all fairness, I am not quoting from my own writing, senator; I am quoting from Professor Rémillard's writing.
The quotes from Justice Duff's decision are as follows:
Under the Constitution established by [The Constitution Act, 1867], legislative power for Canada is vested in one Parliament consisting of the Sovereign, an upper house styled the Senate, and the House of Commons. . . .
The preamble of the statute, moreover, shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom. The statute contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficiency —
That is the quote I want to insist upon. It goes on to state:
— from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest political proposals.
It is quite clear that in order for a chamber to act, there must be contradiction. We must be of different views. We must attack one another not personally, but on the merits of what we propose and what we suggest.
This principle is enshrined in the preamble, as Justice Duff said in 1938, more than 50 years ago. If the Senate, as a chamber, is not in a position to act efficiently — that is, to have those kinds of differences of opinions, ideas, nuances, amendments, sub-amendments, and all the deliberative functions and legislative functions that we enjoy — then we cannot give the advice and consent that is requested from us.
Mr. Mendes: You have just explained in a different way what I am talking about in terms of your parliamentary privileges being undermined.
The Chair: Senator Joyal was asking whether you agree.
Professor Mendes, thank you very much. As usual, this was a most stimulating and interesting session. We are very grateful to you.
The committee continued in camera.