Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17 - Evidence for May 7, 2008
OTTAWA, Wednesday, May 7, 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 4 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, we are continuing our study of Bill S-224, An Act to amend the Parliament of Canada Act (vacancies).
We have the great pleasure this afternoon of welcoming as a witness the Honourable Peter Van Loan, who is the Leader of the Government in the House of Commons and Minister for Democratic Reform. He has with him witnesses from the Privy Council; Dan McDougall, Director, Strategic Analysis and Planning, Democratic Reform; and David Anderson, Senior Policy Adviser, Democratic Reform. Welcome, minister.
Honourable senators, the minister has not one but two engagements at five o'clock. Therefore we must be careful to listen closely to him and to put other questions in an appropriately concise form.
Minister, the floor is yours to make your opening statement.
Hon. Peter Van Loan, P.C., M.P., Leader of the Government in the House of Commons and Minister for Democratic Reform: Thank you. It is a pleasure to be here. There are many familiar faces around the table discussing familiar issues.
The debate over the future of our democratic institutions, in my view, comes down to a simple choice: Either you support change or you support the status quo. Those who support change will work to find ways of achieving that change. Those who support the status quo will not only argue creatively and vociferously against any change, but will seek to find ways to entrench the status quo and to make change even more difficult to achieve in the future.
Our government believes firmly that our institutions must become more democratic, more accountable and more transparent. In short, they must change. In this area, our government has led the way. Since forming the government, we have substantially changed the way business is done in Ottawa.
[Translation]
We've passed the Federal Accountability Act which banned union and corporate donations to candidates and riding associations; limited individual donations to political parties to $1,100 per year; expanded access to Information laws to include crown corporations such as Canada Post, VIA Rail, and the CBC as well as organizations such as the Canadian Wheat Board; and created new independent officers of Parliament such as the recently appointed Parliamentary Budget Officer.
Legislation was passed which improves voter identification rules and strengthens the electoral process. The extension of the Afghanistan mission was put twice to a vote in Parliament.
Parliamentary hearings were held into the appointment of Justice Rothstein to the Supreme Court, and two bills were introduced to modernize the Senate to make it consistent with 21st century democratic values, principles, and traditions. On the other hand, we have faced a stiff resistance by the opposition to these and other measures.
For example, the Federal Accountability Act was resisted by the Liberals and the Bloc. Our bill to expand the opportunities for people to vote was gutted in committee by the opposition and our Bill to require voters to show their face before voting is being delayed by the opposition in committee.
Our bill to make incremental changes to the Senate by introducing 8-year term limits — instead of potentially 45 year terms — and to consult Canadians on who they want representing them in the Senate, have run into considerable delay and obstruction at the hands of those defending the status quo.
[English]
This leads us today to Bill S-224. It seeks to compel the Prime Minister to make appointments to the Senate within six months of a vacancy occurring. As I have noted earlier, there are those who seek to achieve change and those who seek to maintain and entrench the status quo. This bill seeks to do the latter — entrench the status quo — by entrenching the existing appointment process and making it more difficult to achieve a modern, democratic, accountable Senate.
This bill is unacceptable to the government. We will not support a bill that seeks to force the Prime Minister to make undemocratic appointments to an institution that is not consistent with modern democratic principles.
Some have suggested this bill is nothing more than an attempt by the Liberal Party to legitimize patronage appointments to the Senate by a future Liberal Prime Minister. Given the lack of support by the Liberal Party for real reforms to the Senate, it is easy to understand why such a view is credible and believable. I can picture it now: A future Liberal prime minister justifying patronage appointments to the Senate by saying, ``I had no option. The law forced me to do it.''
Respectfully, I say to the members of this committee, you do have an option. You can say no to the old ways of doing things, you can say no to the status quo and you can say no to this bill. You can work with our government to achieve real change to our parliamentary institutions such as the Senate; change that will modernize and reform our institutions, including the Senate, to make them consistent with 21st century democratic values, principles and traditions.
For example, we have consistently stated that we are open to different approaches to reforming the Senate. Therefore, in the context of a process for selecting senators, such as that envisioned in Bill C-20, the Senate consultations bill, if a similar proposal were to be included in Bill S-224, it could be seen as enhancing democracy, as well as the legitimacy of the Senate. Absent a democratic process, Bill S-224 will simply maintain the status quo by entrenching the lack of democratic legitimacy of the Senate.
Those are my views and I will be pleased to take any questions.
Senator Joyal: I had the opportunity to read the presentation of the minister. Minister, when Bill S-4 was referred to this chamber by the government, this committee conducted an extensive study of the bill and made recommendations to the government to refer to the Supreme Court the question of the constitutionality of section 44; how much power was vested in Parliament to change essential characteristics of the Senate without the concurrence of the provinces. I think this committee came to that conclusion on the basis of briefs it received from the provincial Government of Quebec, from Ontario, from New Brunswick, from Newfoundland and Labrador and from other provinces who expressed a similar concern.
When this report was published, why did the government not act upon it? Today, we could have had parameters available to Parliament whereby the government, or Parliament as such, could act and proceed with changes in respect of the letter of the Constitution.
Mr. Van Loan: I have indicated our view in the past that we believe those two bills are entirely constitutional. Every considered, thoughtful opinion by leading academics says the same thing. If you believe the bills are not constitutional, if that is your considered opinion, then, to be consistent, you will find that the bill in front of you today is not constitutional. The two have their constitutional grounds for the exact same reason. They draw their basis on the notion that we can make some kind of incremental reform as to how appointments to the Senate are made without violating the Constitution. You cannot vote in favour of Bill S-224 and then suggest that Bill C-19 and Bill C-20 as they are now are unconstitutional. That view would be entirely inconsistent.
I am not challenging you that Bill S-224 is unconstitutional, but I can tell you that it will take considerable mental and academic gymnastics to suggest that it is somehow constitutional when the other two are not.
Senator Joyal: You are a lawyer. I am sure you understand the scope of section 44 of the Constitution and the limits placed on Parliament by section 42(1)(b) that specifically mentions the selection, appointment or choosing of senators is within the confines of the general amending formula of the Constitution. That formula provides for the concurrence of at least seven provinces representing 50 per cent of the Canadian population. That issue is the fundamental one at stake.
When I say the provinces, it is not a political speech; the provinces tabled a brief with this committee. You know government machinery; therefore, I am sure that when the brief was signed by their ministers of intergovernmental affairs, it went through the Attorneys General and ministers of justice to ensure that the position put forward by the provinces is sound.
In the end, they may be compelled to defend that position in a court of justice. Statements made by provincial Attorneys General are on record stating that if the bills are adopted as the government has defined them, they will take the issue to court.
If we are to embark on a long process of judicial squabble, why not solve it at the beginning and seek reference from the Supreme Court of Canada to clear the case?
You will remember, that approach was taken in 1977 when the then government introduced Bill C-60. The provinces challenged the position taken in the bill and the government concluded it was better to refer the bills to the Supreme Court. Hence, the Senate reference was given to Canadians in 1979. That reference helped to define the context in which changes to the Senate could take place and proceed.
I do not see why the government stubbornly refuses this approach. The provinces are participants in defining the structure of the Senate. At least four provinces representing more than 50 per cent of the Canadian population have advised the federal Parliament and Canadians that they want to clarify the question and proceed with reform.
I am sure that if the government would have made that reference to the court, the Supreme Court of Canada would have clearly defined the scope of federal Parliament powers in relation to section 44, that is, Senate tenure. Then, this chamber would have considered the parameters of the court and acted upon the bill.
I do not understand the political stubbornness of the government, unless it wants to depict the Senate as the bad player. When you put the question in pure legal and constitutional terms, it makes sense to follow a logical and rational path to ask the court to clarify those questions.
Mr. Van Loan: We, of course, have responsibilities as legislators. We do not refer every question to the Supreme Court before we determine them as legislators. We carry out our responsibility. We take advice and counsel.
As I indicated in the first instance, when your committee studied the subject matter of those bills, it found that they were entirely constitutional.
With regard to the provinces' opinions, you know full well that there is a diversity of opinions among the provinces. In choosing to adopt the views of one or two of those provinces, you choosing not to adopt the views of others on the same subject. In no way can one say the views of one or two provinces, however politically motivated and whatever those political interests may be, are definitive when other provinces have contrary views. I do not consider the views of one or two provinces are definitive at all.
The key question is whether the structure of the Senate is affected. It is not. It is not affected by Bill S-224 in front of you today for study, and it is not affected by Bill C-19 or Bill C-20. None of those bills affects the manner in which the Senate is composed regarding the representation of the various provinces or the discretion of the Crown to continue to make appointments.
In fact, the most coercive of all those three pieces of legislation is the one before you today that compels the Prime Minister or the government to act in a particular fashion that the other bills do not. In terms of entrenching constitutionality, which is the basis on which Bill S-224 is justified, the other bills are far more justified as being proper and constitutional.
That is something your committee will need to wrestle with. How can you find in one direction on one set and another direction on another set?
I believe they are all constitutional. However, all of you who have made decisions in one regard must then decide how you can make the opposite decisions and pirouette on the head of a pin. I look forward to watching that.
The Chair: The deputy chair of the committee has graciously volunteered to yield what would normally be her slot to the sponsor of this bill, Senator Moore.
Senator Moore: Thank you minister, for coming today. In your statement, you say:
We will not support a bill that seeks to force a prime minister to make undemocratic appointments to an institution that is not consistent with modern democratic principles.
We have a Constitution in this country, which is to be observed. When the Constitution changes, people will follow the new rule of law. I do not understand your comment about undemocratic appointments. I am from Nova Scotia. Under the compromise that created this country, we were guaranteed 10 Senate seats in our Maritime division. We currently have three vacancies, some of which have been outstanding for over two years.
I want to hear from you about your democratic adherence to the Constitution of Canada. We are entitled to having those vacancies filled. You can appoint Progressive Conservatives, Conservatives, Reformers or whomever you like. Preferably, they would be all women — if I had my way — to increase the gender balance in the chamber.
I do not understand your comment vis-à-vis the law of the land. Without that compromise from Nova Scotia and the other provinces, there would be no Canada. You cannot ignore that compromise and say it is undemocratic now to adhere to the law of the land.
Mr. Van Loan: I fail to follow your point there. My view is one about the principle of democracy and what democracy represents in the 21st century.
Senator Moore: That is exactly the point.
Mr. Van Loan: I think everyone, even Nova Scotians, believe strongly that the Senate needs to be reformed. If I look at a recent poll from Angus Reid, it asks the question: Which of these statements is closest to your point of view? First is that Canada does not need a Senate. All legislation should be reviewed by the House of Commons. Thirty-eight per cent of Atlantic Canadians believe that statement. Second is that Canada needs a Senate, but Canada should be allowed to take part in the process to choose senators. Forty-four per cent of Atlantic Canadians believe that statement. That is the dominant view. Third is that Canada needs a Senate and the current guidelines that call for appointed senators should not be modified. Four per cent of Atlantic Canadians agree with that sentiment.
Those are the Nova Scotians of whom you speak. You stand here —
Senator Moore: It is also —
Mr. Van Loan: If I may finish, you stand here saying that you are representative of those individuals. You have no democratic mandate from them. You were appointed by someone who was not from Nova Scotia. It is true that you sit in a spot allocated to Nova Scotia. However, to say that is a kind of democratic representation in the 21st century, clearly the people of Atlantic Canada do not feel that way.
Senator Moore: That happens to be the law of the land today whether you like it or not.
Mr. Van Loan: They do not feel their senators should be selected that way.
Senator Moore: It is interesting that the Progressive Conservative Party, as you may know, is the party currently in power in the minority government of Nova Scotia. At its recent annual provincial convention, members decided that they did not want elected senators. I put that on the table for your information, minister.
I turn to the House of Commons aspect of this bill with regard to calling by-elections sequentially. In the Roberval—Lac Saint-Jean riding, between the time of vacancy and the time of the vote, 50 days transpired. With regard to the riding of Toronto Centre, 259 days transpired. The people in Toronto Centre were without their constitutionally guaranteed representative in the House of Commons for that period of time.
What public good was served by having a by-election eight and a half months after the vacancy occurred?
Mr. Van Loan: To answer your main question, which is the question of the provision in the private member's bill or the senator's bill regarding the dates, I do not have strong views on the order in which by-elections should be called. I am not sure it would solve the problem or the evil that you identified and are concerned with. I do not think it is problematic to require by-elections to be called. In the current context, however, you know that the writ for a by- election can be any length of time.
Senator Moore: I know that.
Mr. Van Loan: As such, the situation you are concerned about could still arise, even if this bill were to pass.
If this bill in front of us became law, the situation that you describe — where one seat can be open and vacant for a long time before having an elected representative and another for a shorter time — could still be the case.
Senator Moore: The six-month deadline is there, and it would mean the calling of the by-election sequentially. I am not sure that you are right on that point.
Mr. Van Loan: Those comments are both accurate, but there is no restriction on the period of time for the writ itself. It is an interesting concept; I do not know that it will change a great deal. There are reasons why we want to have flexibility. I am not terribly wedded to them.
We have a situation right now, for example, with an existing vacancy in the riding of Guelph; we anticipate a vacancy in Don Valley West. Should the by-election in Guelph go ahead right away? Should we wait until Don Valley West is ready at the same time? We do not know that. That situation is similar to what happened in Quebec. There were two vacancies already; there was an announced resignation coming, and there was an anticipation of that resignation, which is why one of the vacancies in Quebec was significantly shorter than the other, with the notion that there were efficiencies in holding all the by-elections on the same day.
All those things were legitimate considerations. I do not feel strongly, but I do not feel that the concern you raise is something that the bill will do anything about.
Senator Andreychuk: If this bill passes, the witnesses before the committee to this point have indicated that it will compel and fetter the Prime Minister to act according to the terms of this bill. When asked what the sanctions would be against any particular prime minister who chose not to follow through, the sanctions seemed to come down to political sanctions. The remedy would not be a legal one in the broadest sense of the word. Therefore, we are back to public opinion. The next polls would determine whether that prime minister acted appropriately or not.
Is your opinion also that there would not be a legal remedy compelling the Prime Minister? There is no sanction, in other words?
Mr. Van Loan: That is my understanding of the bill, as I have read it.
Senator Andreychuk: One other issue that we have wrestled with here is that there have been vacancies, and Senator Murray put on the floor of the chamber that other prime ministers have not filled vacancies in the Senate for some considerable times, particularly in some regions. We have all that evidence from the start of this country.
Some witnesses came to this committee saying there is a crisis at this point, that we have hit that point. However, when pressed, are we doing our job? Am I, as a senator, doing my job? Are the senators opposite doing their job? They said yes but maybe with more difficulty, and of course, there are always reasons for those difficulties. They said it would be in the future that this would be critical. One witness said it was the nature of this Prime Minister, and cast aspersions that I would not.
Therefore, on September 7, 2006, before the Special Senate Committee on Senate Reform, Prime Minister Harper stated:
The government prefers not to appoint senators unless it has the necessary reasons to do so. I mentioned one of these reasons in the case of Senator Fortier. Frankly, we are concerned about the representation in the Senate and about the number and the age of our Senate caucus. It is necessary for the government, even in the present system, to have a certain number of senators to do the work of the government in the Senate. We have not reached a point where it is necessary to appoint certain senators to meet this objective. At this time, I prefer to have an election process where we can consult the population rather than to appoint senators traditionally.
Is that still the position of this Prime Minister and the government?
Mr. Van Loan: It most certainly is. That statement goes to the core of our concern with this bill. We made a commitment to Canadians in the last election to move to a process where they have a say in electing their senators. We have a bill that seeks to achieve that process. It is being studied right now at a special legislative committee of the House of Commons. The hope is that the bill will ultimately pass, become law and there will be an opportunity for Canadians to have a say in filling those vacancies so that those who are in the Senate can truly be representative of the people of the provinces that they say they are here representing so there is a genuine democratic element there. That is what we seek to do.
Were this law in place before that occurred, then the situation could arise where all the opportunities that exist to legitimatize the Senate — you spoke to a crisis being addressed. If there is a crisis of legitimacy of the Senate among Canadians, it is not that there are not enough of them; it is not that they are overworked; it is that they are not democratically elected and there is no democratic element. That is what Canadians say loud and clear is their concern about the legitimacy of the Senate.
I appreciate that there are senators who work hard; I appreciate it is a challenge particularly for the government side having to carry its weight, its workload, with relatively small numbers. However, the resolution is not, we think, one where we continue the deeper illegitimacy of an appointed body that is inappropriate in the 21st century. We think the appropriate solution is to allow that transition to occur from what has been, yes, a proud part of our tradition. The Senate is part of our history, and those old ways in which it operated reflect our roots; there is no doubt of that. There was a legitimate place for an appointed body that reflected, as is still in our Constitution, a propertied class of elite that needed to be protected against those masses. That place was part of our history. It is undeniable and still there in our Constitution. The time has come to grow beyond that, to reflect the fact that we are in the 21st century. That is still the policy of the government.
This bill, if passed, would make that transition much more difficult and lengthy.
Senator Andreychuk: If it came to a crisis point, I understand that the Prime Minister is saying that the institution needs to continue and that situation may be a cause for appointment at some time but is not the case we are in now.
Mr. Van Loan: I have not heard a suggestion from Canadians that we have a crisis. We do not believe that crisis has occurred, and while I occasionally hear from Conservative senators who feel they are stretched and working hard, none of them are telling me it is time to abandon Bill C-20 and start filling other spots first.
Senator Baker: Minister, as you are aware, presently the Senate is dealing with Bill C-10 that passed the elected chamber with a provision of nine pages that nobody in the House of Commons knew existed. The word ``film'' was not used in any of the stages, any of the debates or any of the committee reports. You did not know it was there. Nobody else knew it was there. It was the unelected Senate that discovered it.
A short time ago, minister, you appeared before this committee and said we must pass the Elections Act without amendment, and of course there was a provision in there that would have released everyone's date of birth. We would have had telemarketers phoning every senior citizen if the Senate had not stepped in and overruled the elected chamber of the House of Commons.
In your speech, you said that the Federal Accountability Act was resisted by the Liberals. It is true, minister, that it was resisted by a great many Liberals in the Senate. One thing we objected to, minister, was that a summary conviction offence committed by a candidate or an official agent could be prosecuted 10 years after the fact. It was a disgraceful piece of legislation. From a search warrant that goes into the Conservative Party headquarters, a prosecution could result 10 years later for a minor infraction, whereas the Criminal Code says that for everything else it is six months. It was our recommendation to change it, but you said no.
The point is that we have important work to do here. We fix what the House of Commons does. Senator Moore is trying to say that we need to fill some Senate vacancies. More and more vacancies are coming open. They are not filled unless you have someone who wants to be in the cabinet but cannot be elected. All these vacancies are increasing. We have this important work to do; the check, the sober second thought, on you. The examples are so numerous. We probably would not do it if we were elected because we would behave like politicians; like you people do.
The logical conclusion to what the minister has said here before this committee is this: Vacancies will not be filled, and if this government is re-elected, they still will not be filled. Second reading of the elected Senate bill never appeared in the Senate. It has been stuck in second reading in the House of Commons for four years. Ontario will probably take the Prime Minister to court.
The problem is that you have all these vacancies in the Senate, and we will soon be down to nothing. Is it your intent to eliminate that necessary check that Canadians need on your government?
The Chair: That was his question.
Mr. Van Loan: I know it was a question. When someone is bitter, you can never get a word in edgewise.
In any event, the question was about, as I gather it, sober second thought. I look at the issues you have covered, and it seems to me the place where the sober second thought needs to occur is within the Liberal caucus. I do not know what happens in the Liberal caucus.
We can look at the first issue you raised, which was that of the disclosure of birth dates on electoral lists. That proposal was supported by the Liberal Party at committee in the House of Commons and opposed by the Conservative members.
Senator Baker: You voted for it.
Mr. Van Loan: No, the Conservatives at committee voted against it.
Senator Baker: You voted for it in the House of Commons.
Mr. Van Loan: Only as part of an agreement to have the bill passed to the Senate.
Senator Baker: That is my point.
Mr. Van Loan: We objected. However, it was clear that, without that provision, unless we went along with it, it would not be supported.
Senator Baker: ``I had no choice.''
Mr. Van Loan: The Liberals in the Senate disagreed with the Liberals in the House of Commons who reversed their decision and restored the Conservative view of things, so we appreciated that. However, it would have been much easier had that position been worked out in the Liberal caucus in the first place.
In Bill C-10, the provision we are dealing with is one that the Conservative Party position has never changed on. The Liberals are, of course, the ones who created that provision. It was first introduced by Sheila Copps for concerns she has laid out about funding films that she thought were inappropriate, and there seemed to be a broad public consensus for that position. It was repeatedly introduced by Liberal governments and voted for by Liberals. Although I am sure that bill was presented at caucus, every time it was introduced, Liberal senators were not doing the job at caucus to raise the issue, but they raised the issue once it reached the Senate.
I think the real concerns are, why does the Liberal Party keep changing its mind on where it stands? Why do the senators keep disagreeing with the Liberals in the House of Commons on where they stand? On those questions, Conservatives have been consistent throughout. We have not had need for sober second thought. We were in the right place the first time.
The Chair: Minister, for the record, may I say that this committee was the one that recommended removing birth dates from the electoral list.
Mr. Van Loan: I am well aware of that.
The Chair: The committee did so after evidence presented by the Privacy Commissioner. This decision was not a partisan one.
Mr. Van Loan: You will recall that I was at this committee and pointed out to this committee in evidence that the Conservative Party had opposed the introduction of that provision, and it was introduced by the other party.
Senator Baker: You did, minister. You certainly did. However, you prove my point, do you not? We are not politicians here. We are the chamber of sober second thought.
Mr. Van Loan: Right.
Senator Baker: Senator Moore suggests that, until that you have this constitutional problem straightened out that you are attacking here on how senators are elected or appointed or how they arrive here, for goodness sake, at least fill the seats. We have important work to do. I have described a portion of the work we do. You are making terrible mistakes in legislation in the House of Commons. The errors you have made are outrageous. You prove my point.
Mr. Van Loan: I say briefly in response that I do not believe there is any magic in the sober second thought if you people are appointed rather that elected, or rather than the product of some consultative process. I do not think it is a good thing. I do not think we should throw away the notion of democracy because some people happen to be unelected and can review things. While I appreciate the views of the aristocratic Newfoundlander on the importance of unelected people passing views on matters, I think that democracy is a good way of doing things. Nothing will ever be perfect. That is why there are so many readings of these bills. I believe that elected senators will do as good a job, if not better, but they will at least enjoy legitimacy in the eyes of Canadians that will make it more acceptable when they make those decisions.
Senator Baker: The chair will not allow me to respond.
The Chair: The chair will put you down for a second round.
Senator Cowan: Welcome, minister. I want to repeat again the phrase that Senator Moore put to you from your own speech:
We will not support a bill that seeks to force the Prime Minister to make undemocratic appointments to an institution that is not consistent with modern democratic principles.
Do you believe that only elected chambers are democratic?
Mr. Van Loan: I certainly believe that, in the 21st century, the time has come where people want to have a voice in who represents them. I think Canadians —
Senator Cowan: Do you believe that only elected chambers are democratic?
Mr. Van Loan: I believe that the core of democracy is elections, and any legislative body should have a democratic election.
Senator Cowan: The answer is yes?
Mr. Van Loan: Yes.
Senator Cowan: Do you also believe that only democratic institutions, as you describe them, elected institutions, are legitimate?
Mr. Van Loan: We have all kinds of institutions in our society. We have institutions like the court.
Senator Cowan: I am not talking about the court, minister. I am talking about legislative bodies.
Mr. Van Loan: We have a role that our head of state plays, ultimately, with legislation, which I believe is legitimate in our industry.
Senator Cowan: You believe that unless the Senate of Canada, as a legislative body, is elected or selected, that it is neither democratic nor legitimate?
Mr. Van Loan: I think it is certainly not democratic, and it certainly lacks legitimacy that Canadians wish to see in it.
Senator Cowan: You would say that the only way to make a Senate or this Senate legitimate or democratic is to have elected senators?
Mr. Van Loan: There are all kinds of models on how one could do it. I prefer the approach that our government has laid out, where we consult Canadians and ask them who they wish to represent them at a provincial level. There are many ways of going about it. There are many variations on length of term and many variations on rotations of term. Americans have six-year terms and they rotate elections every two years. There are all kinds of different ways of approaching it, but we certainly believe there should be a democratic consultative element in selecting our senators.
Senator Cowan: Without some election, selection and consultation, this Senate is illegitimate and undemocratic; is that your position?
Mr. Van Loan: I do not think it meets the test for legitimacy in the 21st century.
Senator Cowan: Is that your position?
Mr. Van Loan: I do not want to be too critical of a body that is a legitimate part of our history.
Senator Cowan: I realize you do not want to be critical of the Senate.
Mr. Van Loan: We believe that we want it to change.
Senator Cowan: Do you suggest, minister, that you can move from an appointed Senate to some form of elected or selected consultative Senate without a constitutional amendment and without consulting the provinces?
Mr. Van Loan: Of course, the ideal would be a fully formalized process with the kind of consensus that would address issues like representations of the provinces, changes in growth and the representation formula that exists in the Constitution. I think everyone agrees that formula is less than perfect.
Senator Cowan: Minister, I was not talking about the composition of the Senate. I was talking about the method of selecting, electing or consulting senators. I want an answer to the question.
The Chair: Give him a chance to answer.
Mr. Van Loan: These are, of course, all related issues.
I know many on your side believe full-scale reform should be the only way that reform is carried out, or at least that was the message delivered in the past. However, this bill suggests otherwise.
Full-scale reform would involve all those issues and would involve a constitutional amendment. However, the consensus for that reform is absent at this time for a variety of reasons, which are all understandable based on the interests of the provinces involved.
That lack of consensus should not stand as a barrier to improving the situation by doing what we can within our authority now to enhance the democratic legitimacy of the Senate through changes such as the consultation envisioned in Bill C-20 and the term limits envisioned in Bill C-19.
Senator Cowan: Which is part of a package.
Mr. Van Loan: They are all free standing. Each of those improvements would be good on their own, but bringing them together even further strengthens the legitimacy of the Senate. I think people may have trouble with elected 45- year terms, but they are better than appointed 45-year terms.
Senator Cowan: You would be hard-pressed to find people who have served in the Senate for 45 years, minister.
To be clear, your view is that is possible for the federal Parliament to move from the present appointed Senate to a selected or elected Senate without consultation, without the input of the provinces and without following through on the provisions of the Constitution Act with respect to amendment of the Constitution. Is that your position?
Mr. Van Loan: I will put it to you this way. You have a Senate colleague, Bert Brown, who is the product of a consultative process. Do you think in any way his position in the Senate is illegitimate?
Senator Cowan: Absolutely not; he was appointed in accordance with the Constitution. We were delighted to have him.
Mr. Van Loan: He was appointed following a democratic process. We believe that is a significantly improved approach.
Senator Cowan: That is your choice.
Senator Merchant: In practical terms can you tell me when you envision that you will start making appointments? Will there be a critical point when you will say we need more people in the Senate? You have talked about change, but we do not know how this change will come about. What are you doing as a government to set the stage so you can start filling some of these vacancies?
Mr. Van Loan: Our intention is to start filling vacancies after the process envisaged by Bill C-20 is adopted. If any province were to move ahead with a democratic consultation in advance of that process to recommend senators for vacancies that existed, I cannot say for sure that the Prime Minister would fill them. However, he has indicated by his actions already that that is what he would do and I expect he would.
Senator Merchant: When do you think that will be?
Mr. Van Loan: It depends on each province. My hope is that we will be able to pass Bill C-20 in this Parliament. If not, perhaps it will pass in a subsequent Parliament.
Senator Merchant: I understand that by the end of 2009, there will be almost 30 vacancies in the Senate, a third of its members.
Mr. Van Loan: I keep anticipating an election two months from now. The latest I heard was July, but then it is October. I do not know. We have set October 2009. It is not in our hands.
In any event, we have lots of time and opportunity to adopt Bill C-20 and put it in place. If the next federal election occurs later than this spring, we could select democratically elected senators or at least recommended senators. I think Canadians would be happy to see that development and that opportunity in the next federal election.
Senator Merchant: Do you feel that the government can act unilaterally to set up the process by which senators are elected? This process will be a long one because some provinces have indicated they will challenge it. I think this change will take longer than only a few months.
Mr. Van Loan: Provinces may well challenge it. I expect if that were to occur, courts will act quickly in making a determination, being aware of the issues at play. I have that confidence in the courts.
Senator Tardif: I take offence to your comments about the lack of legitimacy of the Senate. The Senate as it exists now is duly constituted as per our Constitution.
If you want to change the process, then you must begin the process of changing the Constitution. That process requires consultation with the provinces and, according to the process set out, agreement from seven provinces with 50 per cent of the population.
Why are you refusing to go in that direction?
Mr. Van Loan: I do not share your view that the bill before you requires seven provinces and 50 per cent of the vote. That is the view you expressed, that change to select people for the Senate —
Senator Tardif: No, you are talking about Bill C-19 and Bill C-20.
Mr. Van Loan: No, I am talking about Bill S-224, the legislation before us. You said that any change to the process requires including the provinces.
Senator Tardif: The Constitution —
Mr. Van Loan: You said the Constitution sets it up and I need to go to the provinces if I want to change it. That is one issue with this bill. You cannot be —
Senator Tardif: That is if you want to change the Constitution. The Constitution says when there is a vacancy in the Senate, the Governor General, upon the advice of the Prime Minister, shall name someone — shall name.
Mr. Van Loan: Upon the advice, yes.
Senator Banks: It does not say that. It says the Governor General shall name.
Senator Tardif: Shall.
Mr. Van Loan: It does not say the Prime Minister shall.
Senator Tardif: Therefore, the Governor General shall. It is not an option.
Mr. Van Loan: It is exactly the same. That will not be altered in any way by Bill C-19, Bill C-20 or Bill S-224. That will not be altered by any of those three pieces of legislation. If you think constitutional amendments are necessary, then you believe Constitution amendments are necessary for Bill S-224 as well.
That is case you made and that is the point I raised at beginning. I do not have that problem with it. I think the bills are all legitimate. You can debate them and make those changes if you want without a constitutional amendment. If you think we need a constitutional amendment for the others, we need it for this bill as well.
Senator Tardif: Not for Bill S-224, minister.
Mr. Van Loan: What is the difference? Enlighten me. I cannot see the distinction.
Senator Tardif: This bill does not change the essential characteristics.
Mr. Van Loan: Neither do the others.
Senator Tardif: They absolutely do.
The Chair: We will go to a second round, but before we do, I have a question, minister.
As you know, section 32 of the Constitution Act, 1867 says:
When a Vacancy happens in the Senate by Resignation, Death or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.
It says ``when'' a vacancy happens. It does not say from time to time, or at pleasure or when the sun comes out from behind a cloud one day. It says ``when'' a vacancy happens.
Now, I am not a lawyer. To me, the meaning of those words is plain. However, you are a lawyer, so I ask you to tell me what you think those words mean.
Mr. Van Loan: I would want to instruct my opinion based on the practice in the past. I am unaware of any vacancies that were filled the same day that they occurred.
The Chair: The second most recent appointment was within a week, I think.
Mr. Van Loan: Generally speaking, that time would be about the shortest. Lots of vacancies have existed for a long time. That does not create a compelling situation that this legislation would foresee. Otherwise, I do not know why you would bother with the legislation if you think it is already in the law.
The Chair: One uses the tools one has, I suppose.
Senator Murray: I want clarification. The constitutional issue that the provinces of Ontario, Quebec and New Brunswick raise, as you know, with regard to Bill C-20, is that in their view, it is not within our unilateral power as the Parliament of Canada to cause elections or selections, whatever you call them, to be made for Senate seats.
When you suggest that Bill S-224 is in the same category, I do not follow the argument. Surely no one suggests that it is not within our unilateral power to do what Bill S-224 seeks to do with regard to vacancies in the Senate or the House of Commons. Why do we need to invoke the general amending formula for Bill S-224? What is the argument there?
Mr. Van Loan: I no more agree that you need to invoke it for Bill C-19 or Bill C-20 than for Bill S-224 because neither of those affects the representation of the provinces or the essential composition of the Senate.
Senator Murray: It is the method of selection, and as you know from the Senate reference case a long time ago, it relates to whether a change to the duration of the mandate changes an essential characteristic of the Senate. The argument our provincial friends make is that the general amending formula must be invoked for Bill C-20. You say if that is the case, then it needs to be invoked for Bill S-224. I do not follow that argument at all.
We are constraining or seeking to constrain the prerogative of the Prime Minister with regard to by-elections in the House of Commons and the Senate. Those matters are surely within our own unilateral jurisdiction, as you constrained the Prime Minister's prerogative when you passed Bill C-16, the bill for the fixed election dates, so I do not follow your argument.
Mr. Van Loan: I believe that none of the three bills, for the exact same reason, have the problem. In terms of the method of selection, the fundamental legal elements that are provided for the Prime Minister to recommend to the Governor General or the monarch to appoint remain unaffected in their discretion; it remains unaffected by all three bills. Requiring a selection to occur within a particular time touches upon the selection process. That requirement is part of affecting the process by which they are selected. I do not agree with that basis, but if that is the basis on which you constitutionally argue that Bill C-20 requires a constitutional amendment, the same process occurs. That is what this bill is about. It is all about process. You are affecting, altering, compelling and putting in place limits in that process. You are setting up a legal framework for that process. Therefore, if the issue is process, then they are all on the same footing. Yes, it is different aspects of the process, indisputably, but it is a process consideration and a question of process absolutely. I think those bills are all legitimate and do not require a constitutional amendment. You cannot argue on the other side for two but not for the third.
Senator Murray: With regard to Senator Joyal's suggestion, and mine and others that Bill C-20 ought to be referred to the Supreme Court of Canada — and I think it was Senator Merchant's observation about the three provinces — those three provinces have indicated if the bill receives Royal Assent they will challenge it. You seem to think that this challenge could be dealt with swiftly. You would know more about this than I would, but three cases going through three separate appeal courts and making their way up to the Supreme Court of Canada is time consuming. It seems to me that if you wanted to cut the whole thing off at the pass, you would go directly to the Supreme Court of Canada with a reference now.
Mr. Van Loan: You can make that argument for any electoral reform or electoral change laws that pass. I do not think it should be a prerequisite for any change to the Canada Elections Act that it go to the Supreme Court first on a reference because it will affect subsequent election that will occur. Anyone may object to it.
Senator Murray: Three provinces, minister, have made their intentions clear. We went through all this in 1980, and the Trudeau government finally saw the wisdom of going directly to the Supreme Court of Canada.
Mr. Van Loan: I think you would find that, in any case like that, one would face an effort for injunctive relief to prevent something from happening, and it would be up to the courts to determine whether to grant such injunctive relief in the circumstances.
Senator Murray: You will have to spell out this point for us.
Mr. Van Loan: They would deal with it on that basis, that if the situation was urgent because of an upcoming election, they would deal with it on that basis. Even if it did not go all the way to the Supreme Court, the court at the appropriate level would make its determination, and it would have that impact. I am not concerned.
Senator Murray: In that province.
Mr. Van Loan: Well, no. You talk about provinces and the views of provinces. In reality, they must all be regarded to a larger extent as political positions, which reflect the interests of those provinces.
Senator Murray: And yours is not political; you rise above it.
Mr. Van Loan: One of the provinces you indicate, the same province, when its government changed, changed its opinion. Therefore, I think that is the clearest evidence that what we are dealing with are political positions. We are satisfied with the legal advice we have obtained, legal advice that your committee has heard from the most distinguished scholars that the process being followed is appropriate; that Bill C-20 would be constitutional; that Bill C-19 would be constitutional; and, by the same token, Bill S-224 now before you would probably pass the test too.
The Chair: We have time for one quick question from Senator Banks.
Senator Banks: I want you to comment on the distinction that I see. The Constitution refers to fundamental change in the nature of selection. The present bill determines when but not whether the convention of a prime minister making a recommendation to the Governor General will happen. It does not say the Prime Minister cannot. The other two bills constrain the Prime Minister's freedom of action by requiring the Prime Minister, at least by inference, to appoint whomever is selected, whatever that process would be, unless you agree that the Prime Minister could, in that event, ignore the selection and appoint someone else.
Mr. Van Loan: Legally, the Prime Minister could ignore that. That discretion is not affected by Bill C-20. I believe there would be political pressure, the same as there would be in this bill. What is the consequence in this bill? For failure to adhere to the law, one pays a political price. The same would be the case of a prime minister who failed to make an appointment of someone who was democratically elected. They would pay a political price.
This question is raised about constitutionality, this question of compelling the Prime Minister and whether the organization can exist. If there is a requirement that those spots be filled, if it is, as the chair has indicated, that they must be appointed when, again any one of you could take up that question with the courts. You could seek injunctive relief, a mandamus that the Prime Minister fill those appointments. If none of you are keen to try that approach, then I expect —
Senator Murray: Are you giving us legal advice?
Mr. Van Loan: I am saying the fact that this has not happened, that no one has done that, tells me that probably there is no requirement for that to occur.
The Chair: As the Court Challenges Program no longer exists, the question of finance might arise.
Mr. Van Loan: To finance the poor impoverished senators.
Senator Milne: You are the Minister for Democratic Reform. Do you stand by your government's decision to leave the citizens of Toronto Centre without an elected representative for over eight months? How is that democratic reform?
Mr. Van Loan: There are all kinds of reasons why by-elections might not be called at a particular time. I do not have a serious problem with what you have in the bill although I am not sure the bill addresses the situation you speak of. I am not sure it would prevent a situation like that one from having occurred. Lots of situations like that have occurred, and there are reasons; we might want to wait to have a series of by-elections in a common area together at the same time.
There are reasons why we might not want to have by-elections conflicting or overlapping with potential provincial elections, municipal elections and issues like that. I know those issues have been taken into consideration. In general, I do not think I have a problem with the element that is proposed here relating to elections.
Senator Milne: I am amazed that you can defend those eight months with a straight face, minister.
Mr. Van Loan: There have been situations like that over time. I do not have a problem with what you propose in this bill.
The Chair: Honourable senators, that brings us to our commitment to liberate the minister at five o'clock. I believe it is now five o'clock. This committee is now about to go in camera.
The officials were not invited to stay. However, before you leave, gentlemen, are there senators who would like to put questions to the officials, if they can stay?
Senator Joyal: I have one simple question. I read the brief that was presented. You do not have to concur with it. It is a political statement. I was left with a hungry taste because I thought there would be a legal or constitutional argument made relating to the nature of this bill and the exercise of the prerogative. We have heard witnesses, who have raised constitutional issues in relation to the framing of the prerogative. I am sure you have read the minutes of this committee. I was expecting that, in the two pages we received today, there would have been at least one paragraph answering those points.
I do not need you to comment on this point, but unfortunately the brief is a political speech. That is fine. The minister comes here, he is a political minister and he makes a political statement. I have no quarrel with that situation. However, the brief does not enlighten us much in trying to understand the legal implication of this bill in reference to the use of the prerogative or the framing of the prerogative of the Prime Minister to recommend an appointment to the Governor General.
I want to express to you that when the department comes with the minister, I do not want to prevent the minister from making a political speech, as is his privilege. On the other hand, you understand that this committee must study the bill on its merits and the basis of its constitutional implications. We do not have that information in this brief.
I do not know if you can provide us with additional comments, whether written or however you want to give them to us, but I express to you my dissatisfaction that those aspects of the bill have not been addressed by the minister or you on the basis of what we have in front of us today.
Dan McDougall, Director, Strategic Analysis and Planning, Democratic Reform, Privy Council Office: Perhaps I can make two points, if I may. I think, senator, in part, the issue of constitutionality was addressed in the minister's comments. I agree it was not in his opening statement per se, but the minister indicated that it is his view and the view of the government that there is not a constitutional issue with respect to the bill, and that what the bill proposes is constitutionally valid.
With respect to other elements of the prerogative, if you will, a point of order was raised during debate on this bill with regard to Royal Consent, and I believe you received a ruling from the Speaker indicating that Royal Consent in this instance was not required. That ruling was indeed touching on the prerogative. You, as a committee, have a ruling from your Speaker on that aspect.
Senator Joyal: Are you satisfied that this bill is constitutional as is?
Mr. McDougall: Yes.
Senator Moore: Are you the legal advisers to the minister?
Mr. McDougall: We are not legal advisers. We are policy advisers to the minister.
Senator Moore: Did you help prepare his remarks today?
Mr. McDougall: Those remarks, no.
Senator Moore: I listened to the minister saying that the provinces should not stand as a barrier to change, but yet the minister has no problem ignoring the provinces' rights as they exist today. All this talk about democracy and democratic reform, all of that, any democracy hinges on the rule of law. We have a Constitution that I guess the minister implies that he does not need to observe. I want to know —
The Chair: He is about to put his question, Senator Andreychuk. He said, ``I want to know.''
Senator Moore: I want to know what you feel about the rule of law and whether the Constitution of Canada, as it currently exists, should be and must be followed until it is changed.
Mr. McDougall: I agree with you fully, senator.
The Chair: Gentlemen, thank you very much indeed. In particular, since you were not warned that we would hang on to you, we appreciate the fact that you let us hang.
Honourable senators, this committee will now go into an in camera session to consider a draft report and future business of the committee.
Senator Andreychuk: Madam Chair, you have sent out a notice saying we are going to clause-by-clause consideration.
The Chair: That is one of the things we will discuss in our in camera session.
The committee continued in camera.