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.
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
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
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
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
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
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
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
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.
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
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.
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.
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
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.
Finally, section 77 of the Constitution Act, 1867, has been spent, because
Quebec abolished its legislative council in 1968.
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?
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.
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.
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.
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
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
The amendment, from time to time, notwithstanding anything in this act, of
the Constitution of the province, except as regards the Office of
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
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
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.
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.
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.
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
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
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.
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
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.
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.
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
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
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.
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
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
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
Senator Stewart Olsen: Yes.
Mr. Pelletier: The same thing is said in paragraph 51, by the way, of
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.
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
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:
You said it would affect the progress of the Governor General and therefore
would require Royal Assent.
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,
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
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
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
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
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.
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
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.
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
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.
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.
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
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
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
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
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.
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.
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.
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
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.
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.
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
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
Ms. Glover: I agree. That is my answer.
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.
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.
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.
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
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
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
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.)