Proceedings of the Special Committee
on Senate Modernization
Issue No. 9 - Evidence - February 15, 2017
OTTAWA, Wednesday, February 15, 2017
The Special Senate Committee on Senate Modernization, to which was referred Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate), met this day at 12:02 p.m. to give consideration to the bill.
Senator Thomas Johnson McInnis (Chair) in the chair.
[English]
The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. Today's meeting is in public, so let's all have a good and productive one.
The Senate has referred to this committee Bill S-213, An Act to amend the Constitution Act, 1867, and the Parliament of Canada Act (Speakership of the Senate).
This is a public bill proposed by one of our colleagues, the Honourable Terry Mercer, who is with us today, the distinguished looking gentleman halfway down there.
As you know, this bill has a similar general objective to one of the recommendations this committee made in its first report. It seeks a change to the process by which the Speaker is selected.
However, it goes well beyond this committee's recommendation, which was to develop a method for the Senate to identify nominees for the speakership that the Prime Minister could then consider. Senator Mercer's bill would instead amend the Constitution to place the selection process fully in the hands of the Senate itself.
Last December, we heard from Senator Mercer as the bill's sponsor. Last week, we heard from our long-time colleague and former Speaker himself, the Honourable Dan Hays. This week we will begin with Professor Kate Glover, an expert in constitutional and administrative law.
She has a particular interest in constitutional reform. In 2013, Professor Glover served as counsel for the amicus curiae alongside Professor Daniel Jutras in Reference re Senate Reform, 2014 Supreme Court of Canada 32. She has since written extensively on the decision and its effect.
Next, we will hear from Professor Benoît Pelletier, also an expert in constitutional law, particularly federalism, constitutional reform and intergovernmental relations. He is the author of La modification constitutionelle au Canada, and in 2013 he published his analysis of what kind of amending procedures would be necessary for Senate reform. Both were cited repeatedly by the Supreme Court in its opinion.
Professor Glover, please commence with your remarks, which will be followed by Mr. Pelletier's opening presentation. The committee will follow with a period of questions and answers.
Kate Glover, Professor, Faculty of Law, Western University, as an individual: Good afternoon, Mr. Chair and honourable members of the committee. Let me begin by expressing my gratitude to the committee for inviting me to speak today. I am pleased to be here and I hope I am able to provide some measure of assistance to the committee in your study of Bill S-213.
On my understanding, I've been invited today to address the issues of constitutional amendment that are raised by the bill and, in particular, to address issues related to the application of Canada's amending procedures as set out in Part V of the Constitutional Act, 1982. Accordingly, in my presentation today I will offer an analysis of how Part V applies to the bill.
I'm mindful that I am speaking to experts on these issues but I hope you will bear with me as I canvass some of the fundamentals at the outset, and then I will welcome your questions.
As you know, there are two provisions of Bill S-213 that would amend the Constitution. It is these two provisions I will focus on in my analysis.
First, clause 1 of the bill would amend section 34 of the Constitution Act, 1867, by removing the Governor General's power to appoint and remove the Speaker of the Senate. Clause 1 would also empower the Senate to select the Speaker and Deputy Speaker.
Second, Clause 2 of the bill would replace section 36 of the Constitution Act, 1867, by removing the Speaker's current right to a general, deliberative vote and replace it with a right to vote only in the event of a tie.
These two provisions of the bill would have two primary effects on the existing constitutional order. First, they would eliminate the Governor General's role, and thereby the executive's role, in selecting and removing the Speaker. Second, they would reshape the constitutional features of the office of the Speaker itself.
The proposals would transform the role of the Speaker from one with a partisan executive and equal character to one with an elective, non-deliberative nature.
With these effects of the bill in mind, the core question from the perspective of constitutional law becomes: What procedure must be followed to implement the bill? Answering this question calls for a two-step analysis.
The first step is to determine whether or not the amending procedures set out in Part V are triggered. If yes, the second step is to determine which amending procedure applies. Let me take a moment to address each of these steps.
First, is Part V triggered? In some cases there is uncertainty on this question. This is particularly true when we're dealing with proposals that do not change the words of the constitutional texts but rather change parts of the unwritten constitution. This uncertainty does not arise with respect to Bill S-213. The bill expressly alters the text of the Constitution Act, 1867, and therefore Part V is clearly engaged. We're squarely within the realm of the constitutional amending formulas.
Knowing that Part V is triggered, we can turn to the second step of the analysis, which is to determine which amending procedure applies. As we know, Part V offers us multiple options. With this bill there are three options that could potentially apply. The first is Parliament's authority to unilaterally amend the constitution in relation to the executive, the House and the Senate. The second possibility is the unanimity procedure which applies to amendments in relation to the office of the Queen and the office of the Governor General. The third possibility is the 7/50 procedure, that is the general amending procedure which applies in the normal course.
In my view the changes proposed in Bill S-213 can be implemented only with multilateral consent. More specifically, I'm of the view that the unanimity procedure must be followed to dispose of the Governor General's power to appoint and remove the Speaker.
Further, in my view the 7/50 procedure would likely apply to the change proposed in clause 2 of the bill. Altering the Speaker's voting rights alongside rendering the Speaker elected transforms the constitutional role of the Speaker. Redefining the Speaker's character and role seems to engage provincial interests and thereby requires multilateral consent.
Let me explain some of my reasoning. The place to start when deciding which amending procedure applies to any proposal is the general principle that underlies Part V and guides the interpretation of the constitutional amending procedures. At its core Part V is an expression of federalism. More specifically, it's an expression of a cooperative form of federalism, one that upholds the equal status of Parliament and the provinces in the Canadian constitutional design.
This equality sustains Canada's golden rule of constitutional amendment, which is that each order of government must have a meaningful and protected role to play in formal constitutional change that engages its interests. Canada's general amending rule, the 7/50 rule, is an expression of this cooperative federalism. The rule provides that in the normal course a constitutional amendment can be implemented only with the consent of Parliament and a substantial number of the provincial legislative assemblies.
This rule reflects Part V's ultimate aim to foster dialogue between provincial and federal actors on matters of constitutional change while protecting Canada's constitutional status quo until agreement is reached. The principle of cooperative federalism underlies the general amending rule, the 7/50 procedure, but also all of the exceptions to this rule.
A first exception is Parliament's unilateral amending authority. The principle of cooperative federalism explains why the scope of this unilateral authority is quite narrow. It only applies to those changes that do not engage provincial interests. This preserves the notion that provinces must have a meaningful say in constitutional matters that bear on them.
A second exception to the general rule is the unanimity procedure. Cooperative federalism offers us a justification for this rule as well, in that there are some amendments that engage such core dimensions of the Constitution that they must have the consent of all.
With these principles in mind, let me turn to the particulars of the bill and consider the procedures that must be followed to implement the proposed reforms. I'll begin with the first issue raised in clause 1 of Bill S-213, namely the transfer of the Governor General's authority to appoint the Speaker.
Section 41 of the Constitution Act, 1982, provides that any amendment in relation to the office of the Queen or the office of the Governor General requires unanimous consent of Parliament and the provinces. Our question then is: Is clause 1 of the bill an amendment in relation to the office of the Governor General? In my view the likely answer is yes.
The Supreme Court of Canada has not had the opportunity to interpret "office of the Governor General'' in the context of the amending formulas before. However, in a recent case, the Quebec Superior Court held that "office of the Queen,'' also in section 41 of Part V, captures the powers, constitutional status and roles of the monarch in Canada's constitutional order.
The Quebec Superior Court held that the presence of this phrase in Part V seeks to ensure that the powers, status and roles of the Crown as an institution in our constitutional order cannot be altered without the agreement of Parliament and the provinces.
This reasoning suggests that "office of the Governor General'' will similarly capture not simply the existence or the trappings of the Governor General but rather an appreciation of the constitutional powers, status and role that characterize and comprise the office of the Governor General.
This qualitative interpretation, this broad and qualitative assessment, is consistent with the Supreme Court's approach to interpreting Part V, which counsels an attention to substance rather than matters of pure form.
Further, this qualitative interpretation of the term "office'' is consistent with the logic of Part V. Protecting the office of the Governor General through the unanimity procedure without similarly protecting all of the powers that attach to that office would allow for the powers of the office to be stripped away, leaving merely an empty shell. Such a result does not fit with the aims and principles of constitutional amendment in Canada.
As I noted a few minutes ago, the unanimity procedure is intended to protect core matters of Canada's constitutional order. It would not make sense within the logic of Part V to attach the unanimity procedure to an office that serves merely as a placeholder or is just an empty shell.
It follows that the office of the Governor General set out in section 41 must include the operative powers of the Governor General entrenched within the Constitution. This would include the Governor General's power to appoint and remove the Speaker of the Senate, as currently set out in section 34 of the Constitution Act, 1867. Once this power falls within the scope of the office of the Governor General in section 41, it can only be removed with the unanimous consent of Parliament and the provinces.
I will note here, too, that the significance Governor General's authority to appoint and remove the Speaker should not be underestimated. Section 34 of the Constitution Act, 1867, guarantees an expression of the executive within the Senate, one that can be both installed and removed by the Governor General. Replacing the Governor General's power with an election by the Senate erases that executive expression. Whether this is appealing or otherwise Part V is indifferent to that. What it is concerned with is whether or not this a meaningful change, and I would say that it is.
Let me turn to clause 2 of the bill, which would change the Speaker's voting rights. The first question to ask is whether this proposal falls within any of the exceptions to the general rule. If no exception applies then the general amending procedure, the 7/50 rule, governs.
The strongest argument for the application of an exception is to say that Parliament alone can change the Speaker's voting rights because such a change does not alter the fundamental nature and role of the Senate. Rather, it's an administrative matter internal to the Senate's operations and as a result this proposal, so the argument goes, falls within Parliament's authority to unilaterally amend the Constitution in relation to the Senate.
There's certainly an attractive simplicity to this argument. Eliminating the need for multilateral consent would pave the path of least resistance to the implementation of Bill S-213, but I would urge some caution. This argument does not reflect, in my view, the qualitative approach urged by the Supreme Court and as a result does not account for the suite of effects that flow from the bill on the existing constitutional order.
At present the Constitution is quite liberal in its imagination of the role of Speaker. There are very few entrenched rules that regulate the Speaker, thereby allowing for a significant degree of flexibility in the evolution of the role. That said the Constitution Act, 1867, does capture a particular vision of the role of the Speaker. This Speaker holds a partisan office and is an expression of the executive within the upper chamber. This conception of the Speaker is brought to life by the Governor General's power to fill the Speaker's seat with an executive choice, the Governor General's entrenched power to remove that choice, and the Speaker's right to cast a deliberative vote.
The role of the Speaker proposed and imagined within Bill S-213 is qualitatively different from the status quo. Bill S-213 imagines the Speaker that is elected by members of the Senate and votes only in the event of a tie. Under the bill, then, the characterization of the role of Speaker is meaningfully transformed. The Speaker would acquire a newfound degree of independence from the executive.
Further, the opportunity for partisanship would contract with the narrowing of the Speaker's voting rights. In addition, the Speaker would seem to gain a foundation of legitimacy to take on a more active administrative role within the Senate's institutional business as the Speaker would have the endorsement and confidence of the members of the Senate. Further still, with the newly imagined role for the Speaker one region represented within the Senate would lose the deliberative vote and voice of one of its senators.
The scope and character of these shifts undermine the claim that the proposed changes to the role of Speaker are minor or administrative. Rather, the amendments contemplated in Bill S-213 would seem to substantially renovate the constitutionally entrenched features of the Speaker. The bill would change the fundamental nature and role of the Speaker itself, the presiding role within one of Canada's central, national and representative institutions. Such a shift engages provincial interests and thus can't be implemented by Parliament alone.
I will conclude there, Mr. Chair, and I will welcome any questions after Professor Pelletier.
[Translation]
Benoît Pelletier, Professor, Faculty of Law, University of Ottawa, as an individual: Distinguished senators, thank you for inviting me today to discuss this matter regarding the modernization of the Senate.
[English]
I have prepared a document that is only in English, but I would like to be allowed to have that document circulated among the senators if it's possible.
The Chair: It is up to the committee. Is it okay?
Hon. Senators: Agreed.
Mr. Pelletier: I will be pleased to answer your questions in both official languages.
I prepared this document on the basis of an analysis of Part V of the Constitution Act, 1982, and an analysis of the Reference re Senate Reform, an important decision rendered by the Supreme Court of Canada in 2014. This is a summary of the conclusions as a result of my analysis of the global juridical situation.
I came to the conclusion that the proposed changes to the Parliament of Canada Act are constitutional. The proposed changes to section 36 of the Constitution Act, 1867, could be made under section 44 of the Constitution Act, 1982. Let me remind you that section 44 says that subject to sections 41 and 42 Parliament may exclusively make laws amending the Constitution of Canada in relation to the Senate.
I also came to the conclusion that the proposed changes to section 34 of the Constitution Act, 1867, with regard to the election of the Deputy Speaker of the Senate could be made under section 44 of the Constitution Act, 1982, since they are not covered by section 41 or by section 42 of the latter act. That means that the Speaker pro tempore may be elected by senators by secret ballot, without the need for a complex constitutional amendment.
I also came to the conclusion that proposed changes to section 34 of the Constitution Act, 1867, with regard to the election of the Speaker of the Senate would not alter or would not affect the fundamental nature and role of the Senate or the essential features of the Senate.
As such, they would not fall under the 7/50 formula provided for by section 38 of the Constitution Act, 1982. I base this analysis on the Reference re Senate Reform that I talked about at the beginning of my presentation.
However, it is possible that changes concerning the election of the Speaker of the Senate fall under the unanimity procedure of subsection 41(a) of the Constitution Act, 1982, as they would alter the office of the Governor General, i.e., the powers, the status and the constitutional role of the latter. I am referring to the Motard case, which is a decision that was rendered by the Quebec Superior Court in 2016.
[Translation]
In my opinion, the changes to section 34 of the Constitution Act, 1867, regarding the election of the Speaker of the Senate, do not affect the Senate's essential characteristics, and so neither section 38 nor 42 of the Constitution Act, 1982, would apply to those provisions.
However, I must conclude that it is possible that the changes proposed to the election of the Speaker of the Senate may affect the role of the Governor General by virtue of paragraph 41(a) of the Constitution Act, 1982. If that were the case, the unanimity procedure would be triggered.
[English]
If subsection 41(a) of the Constitution Act, 1982, really applies, which is possible and even likely — and on that point I agree with my colleague — then there is a risk that decisions made by the Senate under the Speakership that contravenes that provision would be unconstitutional. If the Speaker is not appointed in accordance with what the Constitution provides and if there's an application of subsection 41(a) of the Constitution Act, 1982, and that provision is not respected, then there is a risk that the decisions made by the Senate under the Speakership that would be unconstitutional would be in themselves unconstitutional.
The reason I am not 100 per cent sure that subsection 41(a) of the Constitution Act, 1867, applies is that Quebec was able to unilaterally abolish its legislative council in 1968. Section 77 of the Constitution Act, 1867, has therefore been completely spent.
[Translation]
Finally, section 77 of the Constitution Act, 1867, has been spent, because Quebec abolished its legislative council in 1968.
[English]
However, section 77 of the Constitution Act, 1867, provides:
The Lieutenant Governor may from Time to Time, by Instrument under the Great Seal of Quebec, appoint a Member of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his Stead.
We can see that is the Quebec equivalent of what is provided for by section 34 of the Constitution Act, 1867.
The unilateral abolition of Quebec's legislative council indicates that section 77 was considered at the time as being related to the constitution of Quebec and not as requiring an amendment made by the Parliament of the United Kingdom. In other words, section 77 has been rendered ineffective without a complex constitutional amendment.
If such were the case, then, why should Parliament not be able to unilaterally amend section 34 of the Constitution Act, 1867, that provision being the equivalent at the federal level of section 77 of the same act?
[Translation]
In other words, Mr. Chair, if it was possible for Quebec to unilaterally consider section 77 of the Constitution Act, 1867, obsolete, why would it be impossible for the Parliament of Canada to unilaterally amend section 34 of the Constitution Act, 1867, since section 34 is the equivalent at the federal level of section 77 of the Constitution Act, 1867.
Later, I will expect questions on the differences between the Senate of Canada and the legislative council of Quebec. I would like to add that because of the abolition of the legislative council of Quebec in 1968, I cannot be entirely certain that the unanimity procedure in paragraph 41(a) of the Constitution Act, 1982, would apply, even though that is quite likely.
[English]
In its October 2016 report entitled Senate Modernization: Moving Forward, the Special Senate Committee on Modernization suggested that there be a process at the beginning of each Parliament for the nomination of up to five senators as nominees for consideration by the Prime Minister to recommend to the Governor General for appointment the Speaker of the Senate. Such an idea could be realized without any constitutional amendment.
Of note, in the context I described earlier the five nominees could even be elected by secret ballot without the need for a formal constitutional amendment.
[Translation]
The senators could be elected by secret ballot, and afterwards the names could be submitted to the Prime Minister for appointments that would be made official by the Governor General of Canada.
[English]
The current constitutional convention requires the Governor General to follow the recommendations of the Prime Minister of Canada. The idea that the Senate makes recommendations directly to the Governor General for appointments as Speaker of the Senate would go against the established constitutional convention and might put the Governor General in the difficult situation where he or she would have to choose among recommendations made by the Senate and other recommendations made by the Prime Minister.
Finally, proposed changes to section 34 of the Constitution Act, 1867, with regard to the election of the Speaker of the Senate would affect the prerogatives of the Governor General and would therefore require that Royal Assent be given before there is a vote at third reading on the bill under examination. In my view such consent must be signified by a minister of the Crown. Merci.
The Chair: Professor Pelletier's document was received at 8:30 this morning and was almost immediately sent for translation. I never like passing out unilingual documents. We have done everything we could to get it translated and we will get it to you as soon as practically possible. Thank you for that.
Senator Joyal: Welcome to our witnesses. It's a pleasure to see you again, Ms. Glover, not in the court this time but in Parliament.
Professor Pelletier, your reasoning in relation to the abolition of the legislative council of Quebec was already provided by subsection 92(1) of the Constitution Act, 1867, which gave to the provinces the capacity to modify their internal constitution:
[Translation]
The amendment, from time to time, notwithstanding anything in this act, of the Constitution of the province, except as regards the Office of Lieutenant-Governor.
[English]
If you abolish the legislative council and you are authorized to do it, the powers of the lieutenant governor within the legislative council are also abolished. Otherwise it would be ludicrous to allow the province to be the master of its own internal constitution but not be able to add the related power of the lieutenant governor to appoint, for instance, legislative councillors.
I don't think your arguments affect the reasoning that this is a change to the office of the Governor General. In my opinion it's where the crux of the question lies. If the appointment of the Speaker, as Ms. Glover mentioned, is part of the prerogative of the Governor General under the instrument of the Great Seal, which makes it a royal power, then the Governor General modification as proposed in the bill of Senator Mercer would fall under the office of the Governor General and trigger the unanimity formula.
There is no doubt, unless contrary to what Ms. Glover has mentioned you propose that it is not an amendment to the architecture of the Constitution the way the Supreme Court has defined it in the Senate reference in 2014. The court has considered not only the text but the impact of the power within the overall structure of the Constitution. Otherwise we fall under subsection 41(1), which is essentially the office of the Governor General, and then it triggers the unanimity formula.
Mr. Pelletier: Senator Joyal is right. Subsection 92(1) existed before the patriation of the Canadian Constitution. The federal counterpart, subsection 91(1), allowed the Parliament of Canada to do the same as the provinces could do. Subsection 92(1) gave the provinces the power to amend their provincial constitutions unilaterally, as subsection 91(1) allowed the federal Parliament to change the federal internal constitution at the same time.
If an amendment was not covered by subsection 92(1) or by subsection 91(1), then it had to be done by the Parliament of Westminster. The fact that Quebec unilaterally abolished its legislative council is an indication that it was considered to be part of Quebec's internal constitution. It was not just the fact that the Speaker had to be appointed by the lieutenant governor. It was abolishment of the whole Senate.
Senator Joyal: The whole institution.
Mr. Pelletier: Exactly, it was considered to be part of Quebec's internal constitution.
I am only saying that an argument could be advanced. The same reasoning could be applied with regard to the election of the Speaker of the Senate of Canada. It could be said that it's part of the federal internal constitution. If that were the case then it would now after patriation be covered by section 44 of the Constitution Act, 1982.
As I said, it is likely a change that affects the role of the Governor General. It is also likely that the proposed changes would be covered by subsection 41(8) of the Constitution Act, 1982.
I thought I had the duty to mention that major argument. It could be advanced by anyone who did not agree with the application of subsection 41(a) to the current situation.
Senator Joyal: Mind you, the decision of the Quebec government in 1968 to abolish the legislative council was not the first time that power was used in the Canadian Constitution.
New Brunswick abolished its legislative council before the Quebec government. Under subsection 92(1) the provinces always had the power to decide about their internal constitutions, but the federal government doesn't have the power to abolish its legislative council, i.e. the Senate. The Supreme Court has been very clear on that. It was a unanimous decision of the Supreme Court that the federal government doesn't have the authority to abolish its Senate as much as the provinces had the capacity to abolish their legislative councils. You cannot make a clear parallel between the two.
[Translation]
As we say in law: "the accessory follows the principal.'' If the principal matter was the abolition of the legislative council, then the powers of the Lieutenant-Governor that were related to the existence of the legislative council also fall.
I do not believe that we can base ourselves on the power of the Lieutenant-Governor to appoint the speaker of the legislative council and cite that as a precedent that could be used in a similar way in the Senate. The Senate is a federal institution, and you have put that argument forward in other circumstances. Consequently, Parliament on its own cannot determine which characteristics of the Senate are referred to in the Constitution Act, 1867.
[English]
Mr. Pelletier: This is a major question, Mr. Chair, so please allow me to give a precise answer to it. During my presentation I mentioned the difference that exists between Quebec's legislative council and Canada's Senate.
In Reference re Senate Reform, the Supreme Court of Canada said that the essential features of the Canadian Senate involve the interests of the provinces. For that reason the essential features could not be changed unilaterally by the Parliament of Canada.
In order to change these features or the fundamental role of the Senate, as the Supreme Court said, you have to apply the 7/50 formula and even the unanimity formula to abolish the Senate.
The question is: Is the election of the Speaker of the Senate part of the essential features of the Senate? My answer is no. It certainly is part of the essential features of the Speaker of the Senate, which is what my colleague Ms. Glover said a few minutes ago. I don't think it is part of the essential features of the Senate as an institution, in the sense that the election of the Speaker of the Senate does not involve the interests of the provinces.
That is the reason why I concluded that section 38 would not apply in the current situation. If it does not affect the interest of the provinces then an argument could be advanced that it's part of the internal constitution of the federal Parliament; then comes the parallel that I made between Quebec's legislative council and the Senate of Canada.
In conclusion, I agree there is a major difference between Quebec's legislative council and the Senate of Canada. Quebec's legislative council only involves the interests of Quebec while the Senate of Canada involves the interests of both the federal and provincial levels of government.
We are not in a situation where the interests of the provinces are involved when we are talking about the election of the Speaker of the Senate. It wouldn't have changed the vocation, mission or role of the Senate. All that would change is the way that the Speaker is appointed. For that reason I authorized myself to make that parallel between the two institutions.
[Translation]
Senator Bellemare: I would like to get back to the spirit behind the objectives of the committee's work, which is to modernize the Senate without making too many changes, if any, to the 1867 Constitution Act.
However, I understand that the bill being studied aims to amend the Constitution Act, 1867, in order to elect the Speaker of the Senate. Do you think it would be possible to find a way to amend the Parliament of Canada Act regarding the election of the Speaker, without touching the structure of the Constitution Act, 1867, and without affecting the powers of the Governor General, who could maintain his power to appoint, and to exercise a veto if the person chosen does not suit him?
In order words, is there some way of accommodating the objectives of our work regarding the choice of our Speaker, while respecting section 36 of the 1867 Constitution Act?
[English]
Ms. Glover: I completely understand your concern about the difficulties that flow from a conclusion that Part V applies. Your question is: What can we do in light of the goal of this committee? I'll say a few things about how we can get around or how we cannot trigger Part V.
We don't have from the courts a clear articulation of what will trigger the amending formula and what won't. We know for certain that legislative proposals will trigger Part V if they constitute amendments to the Constitution of Canada. This is true if these proposals change the text or the architecture of the Constitution.
We don't know whether or not more informal proposals or rule changes as have been proposed by the committee could ever really trigger Part V. It is the case that the interpretation and design of Part V are not intended to crystallize the Constitution in a way that makes it nearly impossible to change.
The Constitution changes in many ways. It is not the case that Part V should or is intended to capture everything, which means that there can be quite a bit of flexibility in terms of the rule changes that the Senate considers.
The caution we have to think about comes back to a point that Professor Pelletier made. There are changes to the rules that the Senate could contemplate which don't trigger Part V but are still offside the Constitution in some way.
For instance, if there was a rule change to say that the Senate would only recognize the Speaker that it elects — essentially saying that the Senate would elect its own Speaker, regardless of who the Governor General appoints — wouldn't change the Governor General's appointment power. However, it would still be offside of the Constitution because the Constitution requires and empowers the Governor General to appoint the presiding Speaker.
The committee has to consider two things. Does a bill or a rule change trigger Part V? Quite apart from that are considerations of whether our proposals to change the rules are offside the Constitution in some way. Even if something doesn't trigger Part V it still needs to be consistent with what the Constitution provides with respect to the Speaker.
[Translation]
Senator Bellemare: Currently, it is always the Governor General who makes the appointment following the recommendation of the Prime Minister. However, that is not spelled out either in the Constitution Act, 1867; it is a convention.
[English]
Ms. Glover: Absolutely, that is a convention of the Constitution. There's no question about that. One of the proposed rule changes is that the Senate could recommend someone to the Prime Minister who could then consider that. A strong argument could be made that there's nothing stopping the Senate from providing input to the Prime Minister in his decision making. The Prime Minister could then consider that in making his recommendation to the Governor General. That wouldn't trigger Part V.
[Translation]
Mr. Pelletier: If I may, I will divide your question into two parts. There are the changes you would like to see to section 36 of the Constitution Act, 1867, concerning the vote. In my opinion, these changes may be made unilaterally by the Parliament of Canada.
There are also the changes you would like to make to section 34 concerning the election of the Speaker and the Acting Speaker. In my opinion, you may elect the Acting Speaker unilaterally. However, it is far from clear that you may elect the Speaker unilaterally, since it is entirely possible that the requirement for unanimity may apply to this change.
It is ironic. There are very few constitutional provisions that must be exercised "by instrument under the Great Seal of Canada.'' I think there are only four in the Constitution Act, 1867.
[English]
We are very close to something that affects the role of the Governor General because of their insistence on saying "by Instrument under the Great Seal of Canada.''
[Translation]
In the Constitution Act, 1867, the Governor General is referred to often as well as the Governor General in Council. There are only four references however to "by instrument under the Great Seal of Canada.'' I will give you some further examples. This applies to the appointment of lieutenant-governors, and also, if memory serves, to the appointment of senators. So we are really talking about powers that are very close to what could be seen as the primary duties of the Governor General.
If your question was whether there is some way of getting around an amendment to section 34 of the Constitution Act, 1867, through an amendment to the Parliament of Canada Act, the answer is no.
[English]
Senator Stewart Olsen: I am wading into a country that I don't know very much about, but I have two questions.
First, because it's by convention is it possible to bypass the Prime Minister totally and for the Senate to take the recommended Speaker directly to the Governor General?
Second, since the Prime Minister has gone against convention and established an advisory committee which is a change to the convention of appointments, what would be the harm in changing convention?
Ms. Glover: On the question about convention, constitutional conventions are thought to be rules and norms of the Constitution outside of the legal context. They are political norms and rules of the Constitution that aren't enforced by the courts but rather are enforced by the political sphere.
Thinking in those terms, if there is a breach of a convention or a change in a convention then technically that is something the courts don't get involved with enforcing. It would be something that would be dealt with and considered in the political realm.
Mr. Pelletier: On the question of whether it is possible to give the names directly to the Governor General the answer would be yes, it is possible for the Senate to do so. Is it desirable for the Senate to do so? My answer is no, because of the fact that there could be recommendations made by the Senate and other recommendations made by the Prime Minister. Then the Governor General would have to choose between the Senate and the Prime Minister.
There's an established constitutional convention which is not written in the Canadian Constitution. Constitutional conventions are changed by politicians themselves so I cannot say it's impossible.
In Reference re Senate Reform, which in part was about filling vacancies in the Senate, the Supreme Court of Canada said in paragraph 50:
In practice, constitutional convention requires the Governor General to follow the recommendation of the Prime Minister of Canada when filling Senate vacancies.
Senator Stewart Olsen: In other words, the Supreme Court ventured into changing the convention or supporting the convention?
Mr. Pelletier: No, they confirmed.
Senator Stewart Olsen: It doesn't mean that much if we say the convention doesn't apply. I'm just putting that out.
Mr. Pelletier: You're right. However, it establishes very clearly the current convention.
Senator Stewart Olsen: Yes.
Mr. Pelletier: The same thing is said in paragraph 51, by the way, of that reference.
The current convention is clear. Could it be changed in the future by politicians? The answer is yes, but maybe the Governor General would have to face a very delicate situation, the one I just described.
Senator Stewart Olsen: That's good.
[Translation]
Senator Massicotte: I want to thank you both for being here with us. This is a very interesting topic. I have one technical question, and a more general one.
Professor Pelletier, in your brief, in paragraph 6, you expressly refer to this potential conflict. If our recommendations are made directly to the Governor General, this puts him in a somewhat awkward position, and so the solution could be to give the five names directly to the Prime Minister.
Mr. Pelletier: Yes.
Senator Massicotte: And that does not raise any problems?
Mr. Pelletier: I think that recommendation 6 of the October 2016 Senate report is quite feasible without a constitutional amendment. Given the risks, if section 14 applies, the unanimity rule applies, and that would seem to me to be a prudent measure.
Senator Massicotte: In paragraph 7, in reference to the election of the Speaker, you say this:
[English]
You said it would affect the progress of the Governor General and therefore would require Royal Assent.
[Translation]
You referred to this earlier. For the information of the committee, what does "Royal Assent'' mean? It means the approval of the minister. However, he or she does not have the authority to sign without obtaining another authorization, correct?
Mr. Pelletier: Precisely. In fact, the approval of the Prime Minister is needed. That confirms the authority the government wanted with regard to the monarchy in 1867. It seems very clear that the government wanted to have the last word, in any given era, with regard to anything that was directly or indirectly related to the monarchy, it being understood that constitutional amendments could be made by the British Parliament. But the fact remains that the Government of Canada wanted to have the upper hand in matters of this nature.
[English]
Senator Massicotte: Ms. Glover, you don't reach the same conclusions as your colleague Professor Pelletier. Could you summarize the difference for laymen? I know there's an issue of judgment as a central feature, but could you summarize your differences so we understand exactly where you two differ?
Ms. Glover: We seem to be on the same page with respect to the Governor General's role and the likelihood of the application of the unanimity principle, the unanimity procedure to change the Governor General's power to appoint.
Where we differ is with respect to clause 2 of the bill and the change to the voting rights. Professor Pelletier has suggested that can likely be implemented through the unilateral procedure, and I am saying that I think multilateral consent is required.
We differ in terms of the way in which we look at the analysis. I'm looking at the package of constitutional reforms set out in the bill, such that the new Speaker would be elected and would have a different set of voting rights. I'm saying that package is essentially a new role for the Speaker that is different from the constitutional status quo.
I agree with Professor Pelletier. It's not necessarily something that goes to the fundamental nature and role of the Senate as an institution. In Reference re Senate Reform, the Supreme Court isn't just talking about the difference between unilateral power and multilateral power or just about the fundamental nature and role of the Senate. The underlying principle is any amendment that engages the federal principle or affects provincial interests.
When we're talking about changing the character of a role protected by the Constitution and imagined by the Constitution in fundamental ways, particularly in our legislative bodies, that will engage provincial interests, affect the federal principle and therefore can't be implemented by virtue of unilateral action.
Senator Massicotte: I gather that both of you agree that the nomination of the Speaker by the Senate itself would constitute a constitutional change. Some constitutional changes only require the approval of provinces or legislatures, but in this case it would require the approval of the provinces and of at least 51 per cent of the Canadian population. You both agree with that.
Ms. Glover: Unanimity, yes.
Mr. Pelletier: We both said it was likely. We used the same term.
Senator Massicotte: Never mind the voting rights, but the first part, the Speaker part, requires the unanimous approval of all of the provinces.
Mr. Pelletier: Likely.
Ms. Glover: Yes.
Mr. Pelletier: If I may add something, Mr. Chair, the approach of my colleague is something that is in accordance with the Senate reference. In that reference the Supreme Court of Canada examined the Senate as a package literally. Also it considered, as Senator Joyal said at the beginning, the architecture of the Canadian Constitution as a whole.
Without ignoring that in my analysis, I explored the ways in which a unilateral modernization of the Senate could be possible that would not directly affect the interests of the provinces. You don't change the rule that decisions are taken by the majority of senators; you change the way the calculation is made. That does not affect the interests of the provinces. If there were a way to unilaterally modernize the Senate that could be the way.
[Translation]
Senator Tardif: Thank you for being here today. Both of you have very clearly said that Bill S-213 modifies the role and powers of the Governor General and will trigger Part V of the Constitution. Ms. Glover, you said things were not necessarily clear. There is clarity as to interpretation, but Part V is not set in stone in the sense that there can always be nuances in its interpretation.
Would it be preferable for the Senate to submit the matter to the Supreme Court before it begins to make changes? Would it be a good idea to wait for the court's decision before going any further?
M. Pelletier: In my opinion, yes, because I believe in the modernization of the Senate, and I think such a reference would lead to a better understanding and definition of the effects and repercussions or parameters of this modernization. So in that context, I am rather in favour of a reference to the Supreme Court, even though constitutional issues are always very controversial. The fact remains that it is quite likely that some decisions the Senate make in this regard may run counter to the Constitution, because they will have effects on the very nature of the decisions made, if not on their constitutionality. So in that context I am in favour of a referral.
[English]
Ms. Glover: I agree a reference has the virtue of bringing certainty at the outset before any final decisions are made or any concrete steps are taken. We have a fair bit of guidance already from Reference re Senate Reform and the Supreme Court Act reference with respect to the interpretation of Part V.
While a reference can bring certainty and offer legal analysis at the outset, we want to exercise some caution in always seeking answers from the Supreme Court whenever we are considering a constitutional change of some kind. We can draw clear answers from constitutional texts and from existing case law and its interpretations. We should only be seeking the Supreme Court's opinion when we have genuine uncertainty.
Senator Tardif: I'm not sure we're feeling certain about anything on the table today.
Ms. Glover: I understand that.
Mr. Pelletier: If there were a reference it could be on many more questions than the ones that are involved now.
Senator Tardif: I understand.
[Translation]
Senator Pratte: I'd like to continue on this topic. Since I am not a lawyer, despite my father's wishes, I have a more political question for you.
In light of what has been said up till now, should we not keep to the mandate of the committee, which was to suggest changes that are not constitutional in nature? Some changes have been suggested by the committee already, and we now have two opinions that the likelihood is high that the amendments suggested in Bill S-213 will require triggering the unanimity process, which is a rather considerable undertaking. Should we not, as the expression has it, not touch these things with a ten-foot pole, and stay well away from them, and stick to changes that are not constitutional? Mr. Pelletier, you are a lawyer, but you also have quite a bit of political experience.
Mr. Pelletier: I understood that you wanted to approach the question from a political angle. I should say that I was very impressed by the committee's report on modernization. There are several very interesting avenues raised in it that deserve to be explored further by this institution, including recommendation 6, which for the moment resolves the issue.
However, I would someday like to see senators be able to elect their own Speaker. That, to me, is an extremely legitimate aspiration, but for the time being it is more prudent, if there is no reference — if the government does not wish to do that, since the government submits these references — to keep to this recommendation. It will allow you to accomplish a certain number of things without having to proceed through a constitutional amendment — including the possibility of electing the candidates you suggest to the Prime Minister. That means that these candidates will have institutional legitimacy right from the outset, and it would be very difficult for any Prime Minister to ignore that institutional legitimacy in his or her choices for senator. So it would be an interesting way to make progress.
Senator Pratte: If the court tells us that such an amendment formula requires unanimity, let us say, we won't be much further ahead. We will be in the same situation, that is to say that we will need the unanimous consent of the provinces to make a constitutional change.
Mr. Pelletier: Yes, to the extent that that is the only question put. I had in mind several questions concerning the possibility of further modernization of the Senate, if only as regards voting. There are two contradictory opinions concerning section 2 of the bill. My colleague feels that the 7/50 procedure applies, and I think it is unilateral, if only on that issue. The further you go with your exploration, the more difficult questions there will be to resolve. I must admit that I liked the committee's report very much when it was made public.
[English]
Senator Tkachuk: This has been a very interesting hour. Professor Glover, you alluded to the fact that it's possible that electing a senator to be Speaker might bring in a culture of changing the Speaker's role and increasing his administrative power or influence within the Senate. That would be good for the Speaker but bad for senators.
I want to ask a question that gets right to the heart of the matter. The only elected person involved in this process is the Prime Minister. It seems to me that we as a Senate would want to fight to keep the elected person being responsible for how the Senate operates.
We're all appointed here and we're talking about electing someone and sending them to another appointed person, which seems strange to me. Nonetheless, if the Prime Minister were really interested in Senate reform, wouldn't be easier for the Prime Minister to say to the Senate, "I will take your advice on the Speaker.''
It's not giving up the power of the Prime Minister to appoint but giving the Senate the right to recommend. Therefore he would recommend to the Governor General, which is what I thought this Prime Minister was going to do. That would be an easier way out of this situation instead of five people.
Ms. Glover: I can't speak to the desirability of electing —
Senator Tkachuk: No, but I can.
Ms. Glover: Exactly. I leave that to you.
Let's think about what the Prime Minister can do. It doesn't seem as though there is necessarily any constitutional constraint on the Senate in making a recommendation to the Prime Minister in terms of the Speaker they want or presenting a list of speakers for the Prime Minister to consider.
The Prime Minister then holds the decision-making power to recommend to the Governor General who to appoint. This again raises the tricky question that we don't have clear guidance on from the courts with respect to: Is there a moment at which the Prime Minister's statement that he or she would be bound by some input changes the Constitution? If legislation were passed wherein the Prime Minister said, "I will always accept the recommendation of the Senate,'' we would have to consider whether that would trigger any of the constitutional amending formulas. Would that be an amendment to the Constitution?
If this Prime Minister is accepting the recommendation of the Senate and decides, going forward, that we don't have a clear statement that it couldn't be a constitutional amendment, it is likely that such a decision of a single Prime Minister would not run afoul or trigger the amending formula.
Senator Tkachuk: It seems to me that if the Prime Minister did that and the Senate elected the Speaker it would go to the Prime Minister. If the Prime Minister at that time agreed I don't think you need anything written down. You don't need legislation. It becomes custom. Then it becomes a political decision, which is where it should be. It should be in the hands of the people, not in our hands or in the hands of the court.
If the people don't like it they can vote that government out and the Prime Minister would have a new decision to make: "Should I continue the practice or take the political consequences of not continuing the practice?'' At least it would be out of the hands of the courts, which would be really good thing, and it would be out of our hands, which would be another good thing.
I am putting that proposition forward. I am a Conservative. I don't really like change very much, but it seems that the Senate wants change. I am trying to find a way out of a very difficult situation.
Mr. Pelletier: This is indeed a very political aspect of the issue for which I don't blame you, by the way.
Let's say the Senate goes ahead with the recommendation 6 and proposes to the Prime Minister maybe three, four or five nominees for an appointment by the Governor General. Let's say the Prime Minister makes the personal commitment to respect proposals coming from the Senate. It would be a very good gesture on the part of the Prime Minister to say "If you propose three, four or five names, I will highly respect your point of view,'' at least.
That kind of political commitment is a possibility. It would be a very good signal from the Prime Minister to the Senate in its initiative to modernize the institution.
Senator Lankin: This is an important statement. Other than his comment that he is a Conservative and doesn't like change, I mostly agree with Senator Tkachuk. Actually I agree he's a Conservative and doesn't like change, but that doesn't apply to me.
I come back to the issue of convention to make sure I understand how far convention goes down the chain of decision making and what is the practice.
Senator Stewart Olsen said that the current Prime Minister had changed the convention with respect to appointment of senators. I don't actually understand that to be the case. He is recommending people to the Governor General who is doing the appointing. That is the convention.
Where he gets those names from, whether it's from a whisper in the ear by a long-time colleague, from the knowledge of people he has, from quiet conversations or a recommendation panel, it is a practice that has been put in place.
I don't know if that is actually a convention, because I couldn't tell you what the convention was before for all prime ministers in terms of how they arrived at names. I think it varied. It was very different for different people at different times. How did Paul Martin arrive at appointing Senator Nancy Ruth? It's interesting but it's not a convention.
What Senator Tkachuk described is a recommendation to the Prime Minister from mod com. If the Prime Minister chose to respect that and had the opportunity to do it after prorogation maybe a couple of times over a term of government, would that always a practice? Would the convention still be that he is recommending a name to the Governor General who is appointing the Speaker, or after a period of time does it become part of an actual convention? Is it easy to change a convention? It's highly political potentially, but is it an easy thing to change a convention in the future if a different prime minister didn't want to respect the advisory committee or the Senate in terms of putting forward names?
Mr. Pelletier: The question of a convention is a very complex one although it seems simple at first glance. In the reference on Senate reform one scenario examined by the Supreme Court was that senators be elected and then the prime minister would recommend these people for an appointment by the Governor General. The convention was respected but the senators would be elected.
The Supreme Court said it was not acceptable because it would change the mandate or the role of the Senate. The Senate would move from an appointed institution to an elective institution.
As long as the convention is respected in a way that does not change the fundamental role of the Senate and Canada's constitutional architecture, then it is fine. A few minutes ago we talked about a proposal that the Senate proposes a name and the prime minister gives his word that he will respect to the nominees coming from the Senate. It doesn't change the essential vocation of the Senate. It's acceptable but it's not everything that could be accepted on the basis that the convention is respected.
Senator Lankin: You raise a very important distinction. It is one we may have to look at in other ongoing discussions.
We are also talking about how we structure deliberative debates, examinations and sober second thought, and whether or not it requires an official opposition structure from a partisan perspective akin to the parties in the House of Commons. A feature of our Senate has always been that there is a government or a proposer and an opposer. We are having that dialogue. Does changing that potentially become a fundamental change to the vocation?
Our committee is looking at that possibility of an alternative way but there are no decisions at this point in time.
Senator Stewart Olsen: On a point of order, this is extremely interesting. We are dealing with the legislation. We should stick to that and try to move it along. You're absolutely right that we could have them back.
Senator Lankin: I could accede to that but you don't know where I was going with it. If I could say where I was going with it, it was to explore the issue of how far convention goes or not, which was an issue you raised. I'll leave it for now, just to be nice.
Senator Gold: Thank you for a splendid, crisp, focused and very helpful constitutional analysis. It makes me a bit homesick for an earlier life.
I was going to ask a question about political dimension but it has been superseded by the discussion. However, I want to see if I remember and understand conventions correctly because there is a bit of uncertainty in the room.
There are things that we do. There are practices and there are even customs. That's not the same as convention. As I understand it, and please correct me if I am wrong, a constitutional convention as a rule has at least two features. It has to have been acted on in a consistent way and acknowledged as binding by the actors who are acting upon it. That's the normative dimension.
We could pass recommendation 6 and the Prime Minister could decide tomorrow to accede to it. If he announced, "From now on I'm going to select senators from this recommended list,'' and did so for weeks and months, it may or may not amount to convention. If his successor, he or she, did the same over time, the court would pronounce on it but not enforce it. One might say it had crystallized, but if the day thereafter the successor to the successor to the successor said, "Je m'en fous. I want to go back and reward my friends,'' that would break the convention. There would be a hue and cry.
That's it, that's all. There would be no other consequence. If it ever got to the court, if I understand correctly, the court would say it's not their problem. Is that more or less correct?
If that is correct we should not worry about creating new conventions or, dare I say, preaching older conventions. We should worry about them because there is wisdom in conventions, but apart from that the consequences will be on us. Is that sort of right?
Ms. Glover: Absolutely, that is right. I come back to a former question as well as your question on what is a convention. The courts have said that constitutional conventions are political creatures that have three features. First, there has to be a precedent. Second, it has to be experienced as normative or obligatory by the political actors. Third, there has to be a reason justifying the rule or practice.
The court in the Patriation reference set out this test. In that case it was found there was a convention that the federal government would always seek the consent of provincial actors when engaging in or pursuing some significant constitutional amendment. The idea that there is a way for the courts to identify what is a convention is absolutely correct, but at the end of the day they are enforced by political actors.
You're absolutely right. If a Prime Minister one day decided, "This is how I will select the Speaker,'' there is nothing in that moment to necessarily say it would become a convention or it won't. It will proceed over some time.
It's also absolutely correct to say a Prime Minister could breach a convention and the fallout from that would depend on the reaction of the public and other political actors. It's hard to know whether or not that would be a one-off breach of the convention and the convention would hold, or if that would be a move along another path.
[Translation]
Senator Gagné: I don't have the same expertise as my colleague to my left, Senator Gold. There are some points in your presentation, Professor Glover, that I did not understand. I would like you to explain why the interests of the provinces would be affected by the change in the Speaker's role. I don't understand exactly why their interests would be impacted.
[English]
Ms. Glover: What I'm saying is that the bill is proposing two changes to the role of the Speaker of Senate. The Speaker will now be elected and the voting rights of the Speaker will change.
That is a change to the way in which the Constitution currently imagines the role of the Speaker. It changes the two primary features that the Constitution currently prescribes for the role of the Speaker. It's a fundamental change to what the Speaker looks like with respect to what is set out and entrenched within the Constitution.
We could say that is an internal matter, that what the Speaker looks like and the nature and role of the Speaker are matters internal to the Senate. When we look to the various roles provided within the Constitution, in particular the important roles that have power within our national, central and representative institutions, it necessarily implicates or engages the interests of the provinces because we're dealing with the fundamental nature and role of constitutional actors within these major central institutions.
[Translation]
Senator Dupuis: I have a question concerning clause 2 of Bill S-213, which aims to amend section 36 regarding the right to vote of the Speaker of the Senate. I want to make sure that I understand the bill properly. I have not attended enough Senate sessions to master all of its rules thoroughly. If I understand the bill properly, in clause 2, we want to change the current situation, which is that the Speaker has the right to vote like all of the senators, and if votes are equal on either side, the motion is deemed to have been rejected.
Is that the current situation? Do I understand correctly?
Mr. Pelletier: Yes.
Senator Dupuis: I was appointed to the Senate on November 15, 2016, and I'm trying to understand the rules of it better every day. If we change the system and adopt clause 36, proposed here in clause 2 of the bill, the Speaker would only have the right to vote to break a tie. Would that not fundamentally change the role of the Speaker as it relates to the other senators, regarding the exercise of the right to vote?
Mr. Pelletier: In the reference relating to the Senate, the Supreme Court of Canada said that the Senate had to be an independent chamber that serenely examines federal bills; it should in fact as such be a less partisan body than the House of Commons.
I would say that the idea that the senators themselves elect their Speaker and the idea that the Speaker not be involved in every vote are in keeping with the concept of the independence of the institution and its less partisan character. In any case, this would allow the Speaker to have a less partisan role and to maintain greater distance from the government itself.
I think this is in line with the essential characteristics of the Senate, and that is why I do not share my colleague's opinion with regard to the application of the 7/50 procedure. I think that most of the changes suggested here do not affect the essential mandate of the Senate. On the contrary, they would bolster the execution of that mandate.
[English]
Ms. Glover: I agree with you that both the Speaker being elected and the change in voting rights in clauses 1 and 2 of the bill are fundamental changes. Professor Pelletier and I agree that this renovation to the role of the Speaker isn't necessarily changing the fundamental nature and role of the Senate as an institution but is changing the nature of the Speaker.
The Speaker is a primary and powerful role within the Senate itself. Even accepting there is no change to the fundamental nature and role of the Senate as a whole, we need to look to this change to the role of the Speaker. It's that change that would require multilateral consent to implement.
[Translation]
Senator Dupuis: I have a complementary question. We could imagine Bill S-213 with just clause 1, without having clause 2. Thus, the Speaker of the Senate would be elected, he or she would be more independent, and this would allow for a certain distance from the executive arm. My comment is about clause 1.
As for clause 2, the exercise of every senator's right to vote would seem profoundly changed to me, if you adopt clause 2 with regard to the current situation.
[English]
Ms. Glover: I agree. That is my answer.
[Translation]
Mr. Pelletier: Constitutionally speaking, clause 1 seems more problematic to me. I would frame the question this way. Would electing the Speaker pro tempore change the fundamental nature of the Senate? In my opinion, the answer is no. I draw the same conclusion regarding the Speaker.
[English]
Senator Mercer: I want to clarify the discussion about the Speaker voting. If there is an issue of particular interest to the senator who occupies the speakership and his or her province, the practice since I have been here is that the Speaker can leave the chair and take his or her ordinary seat with the rest of us. He or she can speak on any bill and make known his or her opinion or the opinions of the province or territory he or she may come from.
I wouldn't think that would change. They would still do that. If they wanted to vote they would stay out of the chair, yield the chairmanship to the Deputy Speaker, and remain in their own seat. I assume that's a fundamental that has been going on since long before I arrived here.
Senator Joyal: On the issue raised by Senator Dupuis, I would like to submit another consideration which in my opinion is very important. We have to understand the fundamental role of the Senate. The Senate is the voice of the regions. That's why it is structured the way it is structured. It is supposed to balance the various regional interests so that a majority doesn't decide at the expense of a minority. That's why we have the Senate. Otherwise, as the Father of Confederation Brown said, there would be no agreement on an appointed chamber and there would be no Confederation.
The way section 36 is phrased in the case of a tie it is a negative. It prevents a region from imposing its views on another. By giving an additional vote, a tie vote to the Senate as the bill does, in fact you touch on something very fundamental in the structure of the Senate. That's why it should be covered by the 7/50 in Part V.
Let's think of the tie vote on abortion in 1992. There is no law on abortion in Canada because there was a tie in the Senate. Imagine if the Speaker had a preponderant vote in such a case. One person would decide the final consent the Senate would give the Crown to have the bill enacted.
This provision has a fundamental sense because of the structure of the Senate. Clause 2 of the bill calls upon a major constitutional change because it affects the structure of the Senate and the way it exercises its power.
[Translation]
Mr. Pelletier: In fact, when the Speaker votes, he or she also knows that the decision in certain cases will be negative. He then takes a position that will determine the result of the vote and influence the balance of power among the various regions. It is not as though the Speaker's vote was neutral; in case of a tie, there's a negative interpretation. I remain convinced that the fact that the Speaker may exercise his right to vote in ties does not change the fundamental nature of the Senate. We would need to look at the historical interpretations that led to the adoption of that provision to really shed light on the issue.
[English]
Ms. Glover: In addition, your point is consistent with the general principles of Part V. It is consistent with upholding the animating and guiding principles of Part V and the distinction drawn between when unilateral powers should apply versus multilateral powers and when some measure of multilateralism is required.
It would bring to life the idea that some measure of multilateral consent is required when we're talking about a fundamental change, a change that alters the way in which one of our constitutional institutions operates and proceeds.
Rather than unilateral amending powers being the general rule and multilateralism being the exception, the 7/50 rule is the general rule and everything else is an exception.
Mr. Pelletier: It all depends on the history and the meaning behind that provision, historically speaking. If it is proven that it was part of the federation compromise and that it had a special role to play, it is in favour of your argument. If it's the contrary, there is no problem with changing that provision.
Senator Massicotte: With the tolerance of Senator Stewart Olsen, I wouldn't mind asking a question of these two experts about our October 2016 report wherein we recommend five names to the Prime Minister. What happens if it's only two names?
Mr. Pelletier: There is still a possibility for the Prime Minister not to appoint the nominees. The fewer nominees there are, the more possibilities there are that the Prime Minister appoints someone else.
When I saw five nominees and I heard three nominees at some point, it's the least that could be proposed to the Prime Minister. I couldn't see anything that would be less than three nominees.
Ms. Glover: I don't think anything turns on the number, necessarily.
Senator Massicotte: How about one?
Ms. Glover: Thinking about what the Senate can do, there's no clear rule against the Senate making this recommendation to the Prime Minister. The Prime Minister isn't necessarily binding himself or herself to the recommendation, but the Senate providing an input to the Prime Minister's decision making doesn't clearly run afoul of the amending procedures or anything else within the Constitution.
Senator Massicotte: Even in spite of the fact that when it came to the election of senators the court said no because in that case you have a list of one. They said that changes the fundamental nature of the Senate. It does not scare you in saying that was refused there but it would not be refused in our case.
Mr. Pelletier: It could be one, two or three senators, but what is sure is that if the Prime Minister does not respect the choice of the Senate it is very humiliating for the Senate. The purpose of all this is to have a Senate that is more respected. My view is that you keep a margin to manoeuvre to ensure that the Prime Minister agrees with your recommendations.
Ms. Glover: There are also distinctions between the proposal that was being considered in the reference versus what is being considered here.
Senator Massicotte: Yes.
The Chair: Before we adjourn, I remind senators that we understood the repercussions of constitutionality and the fact that our mandate was to stay away from that with respect to modernization. We felt it important that it have a hearing because Senator Mercer put the bill forward. This is why we've proceeded in that way.
Professors, you were excellent, and we thank very much.
(The committee adjourned.)