Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence for April 30, 2008
OTTAWA, Wednesday, April 30, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-224, An Act to
amend the Parliament of Canada Act (vacancies), met this day at 4:15 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We
begin today our consideration of Bill S-224, An Act to amend the Parliament of Canada Act (vacancies), which is a bill
that has been presented to the Senate by Senator Moore. I am delighted to see he is with us today.
Our first witnesses today will be people familiar to members of this committee, C.E.S. (Ned) Franks, Professor
Emeritus, Department of Political Studies, Queen's University; and Jennifer Smith, Professor, Department of Political
Science, Dalhousie University.
Jennifer Smith, Professor, Department of Political Science, Dalhousie University, as an individual: Thank you for
inviting me here this afternoon.
The government of Canada is required to uphold the Constitution. It seems odd to even have to say that. On the
matter of Bill S-224, this means that under section 32 of the Constitution Act, 1867, the Governor General needs to fill
vacancies in the Senate when they arise and, "shall by summons to a fit and
qualified person fill the vacancy."
The Government of Canada certainly is not supposed to sabotage the Constitution by undermining existing national
government institutions like the Senate. The Senate is a foundational institution that if it
"belongs" to anyone, it
belongs to the people of Canada. It is not the play thing of political elites and until the people are consulted about the
proposed change, then they have every right to expect that it serve them in the way that it is designed to do.
The current government is not discharging its responsibilities under section 32. Instead, it insists that it will
recommend to the Governor General that she will appoint only those individuals to the Senate who have been selected
in a particular way. The result is hardly any appointments and a growing number of vacancies.
What are the consequences of these vacancies? First, they are impairing the capacity of the Senate to discharge its
function of sober second thought. This is a serious problem in a bicameral parliamentary system.
A second consequence of these vacancies is the impairment of the Senate's function of representing the provinces
and territories, and in an uneven fashion. Most of the provinces have not taken up the Prime Minister's suggestion that
they hold Senate elections, nor has there been a groundswell of public opinion that they do so. It has been the contrary.
In the meantime, the federal government is unable to establish such elections because it lacks support among the
opposition members of the House of Commons. As a result, the only people who can look to regional representation in
the Senate are those in the odd province that is prepared to hold Senate elections.
Bill S-224 is the result of the problem this government has caused by not filling vacancies. The bill is a reasonable
effort to fix the problem. However, there are questions about the need to preclude appointments following a
government's loss of confidence in the House of Commons.
The third consequence of the growing number of Senate vacancies might not be amenable to such a fix as Bill S-224.
If the government allows the number of vacancies to grow, it will have the effect of de-legitimizing the existing Senate.
The government itself will have contrived such a result, using illegitimate means by not discharging its function under
the Constitution in terms of appointments.
The government has not developed anything remotely like a consensus in the country on its model of Senate change.
The government is not on solid constitutional ground in the procedures it is using to make the changes it prefers. It is
simply trying to kick-start some change in a unilateral fashion. It is likely to fail, either on constitutional grounds or
because there is no consensus for the changes at which it aims, or both. However, if it should succeed in making partial
changes on the selection process in term but nothing else, it will have driven the country toward an institutional mess. I
think the result of that is to undermine governing institutions in the eyes of Canadians.
To conclude, everyone has to follow the Constitution. The Constitution mandates that Senate vacancies be filled.
The spirit of the Constitution mandates that they be filled in a timely fashion. In the meantime, anyone who seeks to
change the Senate needs to consult widely with the Canadian people on the options available and then follow the rules
of the Constitution on constitutional change.
C.E.S. (Ned) Franks, Professor Emeritus, Department of Political Studies, Queen's University, as an individual:
Thank you. I prepared a written presentation. The clerk has that. I will reduce it for the purposes of this presentation.
Bill S-224 would require that the Prime Minister fill Senate seats within 180 days of their becoming vacant. It has
been argued that the bill is not an issue of Senate reform, but the subject it deals with — the timely appointment of
senators — has been linked with Senate reform by the Prime Minister.
I support the intent of Bill S-224. Canada's Parliament has two chambers, and each has a function to perform. The
Senate's strengths lie in the high quality and experience of it members, and its ability to provide thorough and less
partisan investigations into issues and studies of legislation than can the House of Commons, with its all-too-frequently highly-charged partisan atmosphere and short-term membership — which still averages less than five years.
I was reminded of the high quality of Senate committee work recently when I looked at the committee hearings of
the House and the Senate on the appointment of the Parliamentary Budget Officer, which had been delayed because
the Library of Parliament and Privy Council Office had different views on classification and level of pay for the
position. The review by the House committee was, to put it kindly, not enlightening, while the review by the Senate
committee produced an informed and intelligent examination of the problems.
The Senate cannot perform its functions as a chamber of "sober second thought" if it does not have members.
I am not clear on what functions the Senate is expected to perform under the incremental approach of the current
government. The people of Canada already have elected members in the House of Commons, and I have grave doubts
about the need for another elected chamber. Provinces and provincial governments are already more than adequately
represented in the complex institutions and processes of federal-provincial relations. I believe that the powers of the
Senate — equal to those of the House of Commons save for the introduction of money bills — would have to be
reduced if the Senate were to gain the legitimacy of being "elected." Its powers to revise and delay legislation would
have to be limited. Perhaps this can be done through changes to procedure in the House and Senate. If not,
constitutional amendment will be needed to ensure that the House of Commons retains its dominant role and the
Senate remains, as it should be, a second chamber.
The functions of the Senate intended by the Fathers of Confederation were far clearer than those intended by
current reforms. The founding fathers intended the Senate to represent wealth and provinces. The constitutional
property qualification of $4,000 in 1867 would be equivalent to about $1.5 million in today's terms. It was an exacting
Senator Moore: Should I leave now?
Mr. Franks: I am simply saying what it was. The average wage in 1867 for a person employed in Canada was about
$100. The $4,000 is 40 times $100. Nowadays, the average wage is over $30,000. If you multiply that by 40, you get $1.2
million. Another factor is housing generally more expensive. A house in 1867 would cost roughly $100.
The other factor that enters in is the fact that, in 1867, most salaries were clustered around $100 and very few were in
the higher level. We have a bigger lump now in the middle. There is a different distribution of salary ranges today.
I will now speak to the timing of by-elections. Current statutory provisions require that the writ for a by-election
must be issued between 11 and 180 days of a vacancy occurring. Then a minimum of at least 36 days must elapse before
the by-election is held. The statutes do not set a maximum time before an election must be held.
These provisions allow prime ministers to pick and choose when a by-election is held and to cluster, hasten or delay
by-elections to maximize political advantage. As a result, Canada has a peculiar and I believe unique approach to by-elections — I hesitate to call it a system — in which, for example, Prime Minister Trudeau in 1978 had 15 by-elections
held on the same day, October 15. If this was intended as a seat-maximizing strategy, it was not successful. His
government lost all but 2 of the 15. Prime Minister Harper set three by-elections in Quebec for September 17, 2007, but
delayed setting dates for by-elections for two other then-vacant seats until March 17, 2008. Other prime ministers have
played similar games with by-election timing. Some constituencies and constituents have been without representation
in Canada's Parliament for close to nine months, perhaps longer.
Canadian practice differs from other Westminster-style parliamentary democracies. In Britain convention demands
that a writ for a by-election be issued within three months of the vacancy occurring. The polling day is between 15 and
19 days after the writ is issued; 15 days is the normal rule. A by-election will normally be held about 100 days after a
vacancy occurs, though the time can be significantly longer. The key difference between British and Canadian practice
is that the date of the by-election in Britain is determined by the party to which the seat belonged, not by the Prime
In Australia there is no prescribed time limit within which a by-election writ must be issued, but this has not become
a matter of political concern. The time from a vacancy until polling day has varied considerably, with the maximum
number of days being 82 days for Moreton in 1983 and the minimum being 17 days for East Sydney in 1903. The
average in recent years has been about 51 days. When a general election has been imminent, however, seats may remain
vacant for longer. Australian by-elections are governed by the principle that electors should not be left without
representation any longer than necessary.
Unfortunately, the same principle does not govern by-elections in Canada. The current government established
fixed election dates so that prime ministers could not fiddle with the timing of general elections to their party's
advantage, but it has left the timing of by-elections open to prime ministerial machinations.
I have two proposals. Regardless of whether one likes or dislikes the present Senate, it has a constitutional existence,
role and responsibility. Failure to fill Senate seats constrains its ability to serve its constitutional and legislative roles.
The 180-day maximum proposed in Bill S-224 for filling Senate vacancies is too long. It should be shorter, at almost 90
In addition, the timing of by-elections should observe the fundamental democratic principle that every Canadian is
entitled to representation in the House of Commons. The present practices regarding by-elections subordinate this
principle to partisan manipulation. My second proposal is that the statutes should be amended to require that by-elections normally be held within 90 days of a vacancy occurring.
Senator Andreychuk: Professor Smith, you commented that the existing situation makes the selection of the Senate,
particularly as to timing, the plaything of the Prime Minister. Do you believe that previous prime ministers viewed the
Senate as a plaything if they went beyond the dates that this act prescribes?
Ms. Smith: We have seen generations of prime ministers criticized for making partisan appointments. We have not
seen a prime minister taking an action that has the effect of diminishing and discrediting an institution and if this
continues, and I am thinking of the figures that were bandied about in one of your earlier discussions, it will be an
institution that will have a difficult time discharging its functions.
I talk to my neighbours about these things and I realize that they are under the assumption that the Parliament or
Canada, the Senate and House of Commons, are operating more or less in the institutional fashion institutionally
under which they are supposed to operate. They have no idea, because this issue has not been publicized in the press.
Certainly, in the East, they really do not realize the situation that is developing. They certainly have not been consulted
about it. Yet, when I think about it, I think, "Wait a minute here. Whose institution is this?" There has to be some
accountability. Ordinary citizens have not taken this action, but the political elites, in this case, in the form of the
Government of Canada. I am trying to make that point.
Senator Andreychuk: The provisions in this bill would curtail the discretion of the Prime Minister. Do you believe
the people of Canada wish it to be curtailed?
Ms. Smith: The people of Canada simply have to expect that the political actors are following the Constitution, so if
there is supposed to been an operative Senate, then there is supposed to be an operative Senate. It is unfortunate that
there is a need for a bill like this. It is extraordinary that this kind of a bill is required to remedy a problem that the
government is creating.
As to what the Canadian people know or do not know, I have no idea. The assumption that I am making is that
they are operating under the expectation that until they are advised or consulted on a change to one of the main
institutions under the Constitution of Canada, that they would expect that it is operating as usual. If its membership is
in decline, I do not see how that can occur.
Senator Andreychuk: You seem to have come to the conclusion that it is not functioning well. I think you said that
the Senate is not performing its duties. You are saying that I am not performing my duties as a senator. What are you
basing that on when in fact there have been delays, if you want to call them delays, or discretion of prime ministers not
appointing immediately when a vacancy occurs? Why are you telling me that I am not performing my duties?
Ms. Smith: I read the discussion that you had about the various occurrences in the past when years have gone by
and senators were not appointed. I am not sure that we are talking about that today. We seem to be talking now about
volume. According to your own discussion, with every passing year, more vacancies will occur.
Let us talk about the representation function, for example. If a province has half its senators, is that as good as all of
its senators? That is one idea that I had in the back of my mind. I am obviously not referring to any particular senator,
and for the remaining senators, as the numbers decline, your workload must grow. That is one point.
Secondly, on the other function of sober second thought, how easy can that be with declining numbers? It cannot be
getting easier, so I can only assume it is getting more difficult. I am trying to make a very clear point.
Senator Andreychuk: You say that, constitutionally, if you have three vacancies out of six, a province or a region is
not being represented. The Constitution, as Professor Franks pointed out, was based on wealth and provincial
representation. There is a case to be made by some provinces out west that, as their population grows, they are under-represented by virtue of the Constitution as it is now. I am not speaking about my own province yet, although we are
optimistic that we will soon be in the same category as Alberta and British Columbia.
Senator Murray: I have a resolution to amend the Constitution.
Ms. Smith: That goes to the question of change and proposed change to the Senate. There are all kinds of
possibilities on that front. That is fine.
Senator Joyal: Thank you, Professor Smith and Professor Franks, for your contribution to this reflection and
debate we are having on Bill S-224.
Professor Smith, we are in a very different scenario than we were with former prime ministers, whether Liberal or
Conservative. Former prime ministers never stated publicly that they would not appoint new senators. We have a
situation where our Prime Minister has made this statement adding that he will not appoint senators unless the
provincial governments adopt legislation, as Alberta did.
The odd situation in which we find ourselves as legislators is that, according to the Constitution, section 32, the
provinces have no say in the selection of senators. The Constitution provides that the Governor General appoint
senators based on the recommendation of the Prime Minister himself. That is the law of the land today.
The Prime Minister wants to compel the provinces to adopt legislation to provide for the selection of senators or
candidates for senatorship, and the Prime Minister has said that he will not uphold the Constitution if the provinces do
not do it.
That is a very twisted kind of reality and we see the consequence of a depleted Senate, especially of senators from the
government side. Those senators remaining do an admirable job because they have to cover committees and all kinds
of parliamentary functions. The Prime Minister told the Senate that is the way it will be and it will become worse in the
years to come because, according to the list of predictability of retirement, by the end of 2009, there will be 29
The predictability of vacancies in the Senate does not exist in the House of Commons. By-elections in the House of
Commons are triggered by either resignation or death. In the Senate, a senator reaching the age of retirement, which is
75 years, triggers a vacancy. It is an odd phenomenon for a senator to die while serving in the Senate. I would have to
consult the statistics on the number of senators who have died while in service. In addition, a senator may resign for
health or personal reasons; this happens but it is also an exception. The rule in the Senate is predictability.
When you read the section 32 of Constitution it says clearly "when a vacancy happens." As I said, we experience a
vacancy when a senator reaches the age of retirement, resigns or dies.
It seems clear to me that we are in a difficult situation whereby we are compelled to accept the Prime Minister's
commitment to uphold the law of the land by compelling provincial government legislatures and other levels of
government to adopt legislation to provide for selection of senators. I have remarked that the provinces and other
governments have nothing to say on the Constitution according to Senate appointments. It seems that this is twisted
Ms. Smith: I find it an extraordinary situation in two ways. First, if it continues, it will be a rare old situation. I
noticed in one of your discussions you were broaching this issue by saying if this should continue — meanwhile there is
no reform or change process per se under way and this described situation continues — then what. How long can it go
on before you do have an institution in crisis and, in fact, it starts to become an issue in throughout the country? What
You have spoken about the role of the Governor General. I presume that you want to look ahead to figure out how
long this can go on and what kind of situation ultimately would you find yourselves in.
Senator Joyal: Would it not be absurd to have more than 50 per cent of the seats vacant?
Ms. Smith: If that were to happen, I assume people would start scanning options and one could run through them.
You discuss the issue with the Governor General, and I have thought about that. I think that one probably might have
to be set aside, and I can explain why I think that. Another option, of course, is the court. A third option is that in
engendering a kind of institutional crisis one starts to drive parties towards finding a solution. Someone might say the
government already has a solution in the form of bill this and bill that. The problem is there is no consensus on those
ideas and yet, this is the Senate. It is interesting this way.
Nova Scotia, many decades ago, was like many of the other provinces; it had a bicameral legislature. Over a long
period of time, the effort was made to abolish the upper chamber, and eventually it was. It required, among other
things, a court case to do that. When the court gave the all clear, as it were, eventually the Conservative government, in
fact, was able to effect that change.
There is one huge difference between the situation in a province and the situation in Canada. When you speak about
the Senate, it is a nation-wide institution and, therefore, not one for which a change can be made on a unilateral basis.
That is a huge difference. When I say option 3, discrediting an institution to the point where you drive a crisis, you are
into a political situation and trying to find your way out of that.
That is about as far as I have been able to go in my thinking because I do not like to think ahead in those ways.
Mr. Franks: In some ways, I think the Senate is already feeling the pinch. My understanding is that some senators
wanted to create an arts and culture committee and there was a shortage of members on one side. The demands on the
time of senators exceeded the ability to fill the positions.
We have that problem in the House of Commons. I have not looked at Senate committees, but I do not believe that
members of the House of Commons adequately prepare themselves for committee work. The demands of their time far
exceed their ability to meet the demands of committee. Every senator that you lose, the bell is tolling for the rest of you.
It is tolling for thee. I think the problem is already here.
Senator Joyal: At what point in time do you draw the line? When does the situation become untenable?
Mr. Franks: The Senate has to do that itself. I cannot say. That is one of the places where the real strength of the
Senate should come in as the capacity of the two sides of the house to work together and come to an agreement.
The burden will increase, and some day I think that this committee or another committee will say,
"It is not
working. The Senate is not doing what it should and we cannot do it." You might find a broad consensus amongst
members, and at that point I hope you are all sober and you give thought to it and give some suggestions to the
To put it another way, I do not think there is any absolute place where it becomes unbearable. It is something that
you as senators will have to feel as a collegial body, when are we no longer able to do our work, when has this rather
silly approach become too much for the Parliament of Canada to fulfill its function?
Senator Stratton: My question evolves around the appointment in a timely fashion to which Professor Smith
referred. Historically, there have been vacancies for quite a period of time, as Senator Murray had pointed out in a
small brief speech when Senator Moore was introducing this, and Senator Murray went into the history.
Senator Murray: It was related to another motion.
Senator Stratton: One of the positions in Manitoba was vacant for over five years. In 1979, and Senator Murray can
correct me on this, there were only a dozen or so Conservative senators. It got down that low and it operated, albeit
with difficulty, but it operated. Historically, the argument is that the Senate has operated legitimately for a number of
years at times since Confederation with much diminished numbers on one side or another. Therefore, I really wonder
whether this "timely fashion" issue exists.
Currently we have 22 Conservatives, 60 Liberals, 6 or 7 independents and 14 vacancies. The place seems to be
operating, although we admit that it is difficult, but it is operating and the committee structure is operating, albeit with
some difficulty. However, being whip on the government side, I see the opposition whip substituting in committees as
often as I am because with the 60 Liberal senators, they still have difficulty getting people to a attend committees.
Senator Milne: We do not have to come any more.
Senator Andreychuk: That is true.
Senator Stratton: That is true, but why put the onus on the poor whip? He is the guy running around like I am.
When I look at the historical picture of that period around 1979 and I look at how the Senate is operating today, I
do not see the urgency of suddenly deciding we have to make appointments. In my view, the argument is not there. The
Senate has operated under these conditions for some time.
The vast majority of Canadians want an elected Senate. In addition, a growing number of Canadians want the place
abolished. Alberta has had two elected senators. What happens in a situation with nothing other than more provinces
deciding to elect Senators? Where are you then?
Ms. Smith: I want to respond to your timely fashion comment. In the past, when appointments were not made,
undoubtedly there were reasons for it. I am sure some of them would be partisan reasons having to do with the
difficulty of making decisions when there was more demand than supply.
Second, I think that Senator Joyal's point is the critical one. The Prime Minister has thrown down the gauntlet in
stipulating his intention. He is taking a very dramatic stand on this issue in declining to make appointments unless the
individuals have won a consultative Senate election. That is the key point and is the difference between this current
situation and previous situations.
On your point about the vast number of Canadians who want an elected Senate, I do not know what we can make
of any of these figures. If you ask people whether they want taxes lowered, you may get a strong favourable response.
If you ask them whether they want to reform the Senate, why not? Reform has the implication of being a good thing.
We have no idea what that reform means. There could be a very strong component within that who would simply like
to see abolition. When an issue is not openly, publicly and widely discussed and when options are not put to people so
they can see the possibility, you really have no idea what these polls may mean.
Mr. Franks: I think the Senate can operate with a lot fewer people. However, your committee work would suffer and
I think that is the most important thing the Senate does. I have a very high respect for Senate committee work. As I
have worked a great deal on House of Commons committee work as well, I say that very sincerely.
I do not get excited about this because it will sort out. I am not personally in favour of an elected Senate, but I can
see it working. My main concern would be that the people elected are of similar quality to the people who have been
Figures show that if you take the average senator, by-and-large, he or she has had more political experience and has
been more successful in his or her previous career. Certainly, they have more experience within the legislature than
have members of the House of Commons. That is something you bring to bear.
I want to push my own agenda a bit. In my view, the by-election issue is more important at this point than the
Senate one. Senate reform is underway here and there. However, the by-election issue is one of those unreformed parts
the Parliament that has been ignored for far too long. That is why I put those detailed comments in my paper. I think
that needs close attention.
Senator Stratton: It will be interesting if we go to the end of 2009 with 29 vacancies. That will about an election issue
if nothing else.
Mr. Franks: There will be many slathering, ambitious, drooling politicos out there.
Senator Milne: Senator Joyal largely covered my point. In spite of the fact that Senator Stratton does not think our
committee work is suffering currently, I believe it is. This committee itself should have five Conservative members.
Senator Stratton: It should have four.
Senator Milne: It should have four Conservatives and eight Liberals. I would say that we have an average of about
1.5 Conservatives at every meeting.
An Hon. Senator: Point of order. Look around the room and see how many senators are on the Liberal side. How
many are there?
Senator Milne: I am quite aware of that today.
Senator Stratton: That is normal.
Senator Milne: No, it is not.
Attendance in committee is severely hampered by the fact that we simply do not have a full roster of Conservatives.
I think it is important and it is important to government legislation that there be a full roster of Conservatives able to
come to these committees.
I think it should be referred to the Supreme Court, but the Senate does not have the power to make a reference to
the Supreme Court. That can only come, I believe, from the Prime Minister through the government. Therefore, we do
not have that recourse.
It comes down to the consequences involved with these vacancies. There will be 29 vacancies by the end of next year.
I will be the last one to go at the end of next year. In January, Senator Grafstein will leave. That will make the 13 who
will leave next year. I think it will have a severe effect on how this place operates, how it can operate and how
government legislation can pass.
The Chair: Do you have a question?
Senator Milne: I am making a political statement just as Senator Stratton did.
My question has to do with Ms. Smith's sixth point. In your outside opinion, what are the consequences of these
vacancies? What will happen when this place becomes dysfunctional? Is that perhaps a goal the Prime Minister quietly
has in mind?
Ms. Smith: So much of this is contingent on the political situation, who is in charge of the government, and so on.
One interesting consideration is my third point when I spoke about the legitimacy of an institution. You are reaching
something quite serious. If, for example, the government were to change and a government came in that did not have
Senate change as an item on its agenda, do we really think that such a government could turn around and make a slew
of appointments easily? At one time, a lot of attention might not have been paid to that. However, I am not sure that
would be the case now.
In other words, I think that with the decision that the Prime Minister has made and the action he has taken, it
actually has moved the goalposts on the issue of the Senate and Senate change. I am not sure there is the option to go
back. I am not sure where we are going moving ahead, but I think there will be ramifications of this decision and the
action he has taken. Pieces are moving on the chessboard, the terrain has shifted and we cannot really be all that
certain of what we will see. However, I do not think it is business as usual.
Mr. Franks: If I knew what Senate elections were supposed to achieve I would be much happier. However, apart
from saying that elected officials are better than appointed officials are, I do not know what an elected Senate
supposed to achieve; therefore, my views on Senate reform are not terribly helpful in the present atmosphere.
I do have a concern that, over time, we cannot let the Senate atrophy. It either has to be abolished or it has to be a
functioning part of Parliament. Death by 100 cuts is not the way to go.
Senator Watt: I very much enjoyed both of your presentations. I have dealt with a number of constitutional
violations, especially as it relates to my people, probably more than any other senator.
I was encouraged by your presentation. I was looking for an answer on how we get out of the mess we are in now. I
have been listening carefully to the responses that each of you have made to a number of our senators' questions.
However, there is still an area that remains grey in my mind: We cannot go to court as an instrument. Only the Prime
Minister, a government, can go to court.
I know for a fact that the provinces, if they disagree with the action that is taken by the central government, can also
challenge that matter in the court. However, I have never heard of a matter as important as this is. I do not know
whether the individual or a group of individuals can take this matter seriously. In my opinion, this is a people's
government, as you have indicated; it is the people who need to be consulted. Not only consulted but they have to be
engaged in the discussion on what will be tomorrow.
They have not had that opportunity, as you have rightly state. I concur with that strongly. I always believe that the
Constitution is there for a good purpose and good reasons; it is to be followed until there is public engagement or until
the public outcry is asking for the government to make a change.
That is my problem.
Given this is where we are, what is your opinion regarding the predicament we are now in on how to get out of it
while at the same time stopping or preventing a politician or a government taking up by his own hand, moving ahead,
operating above the Constitution or operating above the rule of law?
That is the crux of the issue. I feel that needs to be answered. I have not heard that answer. If we are to continue to
keep talking without getting to the bottom of the problem, we are wasting our time and we are wasting money.
Mr. Franks: I think at this point, it is bending the law rather than breaking it. As the point has been made before,
Senate positions remain vacant for a long time. I have never seen a thorough study on how long they have remained
vacant, but we all know there have been vacancies for well over months and into years.
The question that faces the Senate is when does the accumulation of vacancies reach a point that you feel prevents
this institution from doing what it must do? By that I do not mean what you would like it to do, but what it must do.
I do not know the answer to that question. However, at some point something will have to give on this. I do not
know when or how it will happen. It might be that Bill C-20 moves through the House of Commons and comes to the
Senate and you say, "Fine, we will agree to this, provided that we have some assurance that the other branch of this
reform — the term limits — is done to our satisfaction." However, I think that one would wind up as a reference to the
It is a messy, ugly situation. I do not particularly like it and if I was choosing an approach to Senate reform, I would
not choose it. However, no other approach that is ever been taken has worked in the 100-plus years of Canadian
On the other hand, I often remember what Samuel Johnson said when Boswell said to him,
"So, sir, you laugh at
schemes for political improvement." Johnson said, "Well, sir, most schemes for
political improvement are very laughable things."
I feel that way about many of proposals for Senate reform. I cannot answer your question. This is one of those
open-ended, evolving stories that is in its opening chapters, and I do not know what the last chapter is.
Ms. Smith: It is a political situation. If everyone is to agree with the Prime Minister, then that would be one way of
resolving it, but if people do not and his idea does not come to fruition, what happens then? What does his government
do? Does it persist in not making these appointments except under certain circumstances? What does another
government do? If the aim of the exercise is somehow to drive the country towards considering change to the Senate,
then the current path may lead there.
Senator Moore: Professor Smith, I thought the House of Commons took care of the increased numbers in the Senate
vis-à-vis the provincial populations. I think back to Confederation, the compromise that was reached, and the fact that
Nova Scotia was given 10 seats.
In another appearance, you talked about pulling out the rug from under the people. Would it not be pulling the rug
out from under the people of Nova Scotia if someone were trying to increase numbers outside of the regional basis on
which the country was established?
Ms. Smith: Are you referring to vacancies?
Senator Moore: I am referring to the idea that because there are more people in another province now than were
there at the time of Confederation, therefore they should have more senators.
Ms. Smith: You are talking about the distribution of Senate seats and whether it should be changed and, if so, how
and so on.
To my way of thinking, the answer to that question depends on your opinions about a prior set of questions. People
have to decide if they want a bicameral Parliament, whether it is a parliamentary upper house first, which means sober
second thought, scrutiny, dealing with legislative difficulties of one kind or another, and perhaps studying particular
issues and so on. Is that the fundamental practical function of a parliamentary upper house? Alternatively, do the
people want to put more emphasis on the provincial-territorial representation component? On the one hand, it would
not be a replica of the House of Commons, at the same time that would be an aspect of things. Then one must decide
whether one wants to look at a model like that in the United States or at different kinds of models that you see in
European countries with bicameral legislatures and different ways and so on.
I think you have to answer those prior questions first. I tend to see it as a bit of a whole. There are many pieces of
the puzzle, but you must start with first principles and how you conceive of this body in terms of function.
Senator Moore: Related to the filling of vacancies aspect of the bill and the current situation, as a Nova Scotian, we
have three vacancies, so 30 per cent of our constitutional entitlement is not being filled, and this is by the direction of
the Prime Minister.
What do you have to say about that in terms of pulling the rug out from underneath Nova Scotians? The Yukon is
entitled to one and now has none, so a 100 per cent vacancy, and B.C., which is entitled to six, has only three, so it is
down to half.
Ms. Smith: I do not think it is a good thing at all. The Constitution is fairly clear on the situation, and it is an
extraordinary situation when you do not have a functioning body in the manner prescribed.
Senator Moore: Senator Stratton mentioned selection and elections and so on. Really, the method of selection he
was talking about is irrelevant to this conversation. What we are talking about here is vacancies cannot be tolerated on
an indefinite basis, and that is what I am trying to get at in this bill. I think we have your comments on that earlier, and
those of Professor Franks.
Senator Murray: Mr. Chair, the comments that I am going to make, and they are comments will be as timely, I hope,
when the second panel is at the table as they would have been with the first panel. However, I thank Professor Smith
and Professor Franks for coming here today.
I want to say for the record, apropos Senator Moore's comments, that while we are emphatically on the same side
with this bill, we are emphatically on opposite sides on the issue of western regional representation.
The Chair: And the motion you have made.
Senator Murray: The House of Commons is not rep by pop. Seven provinces in the House of Commons are
considerably overrepresented in terms of rep by pop, and therefore I find it difficult to accept arguments that —
The Chair: That are beyond the scope of this bill. We promised Professor Smith that she could leave 10 minutes ago.
We thank you very much indeed and apologize for keeping you overtime.
Senator Moore: Mr. Franks, I am interested in your comments with regard to the British and Australian situations.
Are there other democracies where the executive can selectively or capriciously fill or refuse to fill vacancies?
Mr. Franks: New Zealand is the other democracy, but in recent years, most of the vacancies that have occurred are
on list members rather than constituency members, so they simply put in the next person on the list to replace the list
member. You see, it is a mixed member PR.
Senator Murray: It is unicameral.
Mr. Franks: Yes, so the issue is not the same as by-elections here in Canada. That is why I used Australia and
Britain as the two comparisons.
Senator Andreychuk: Professor Franks, you said that the worth of the Senate is in our committee work. I have
always thought that as our value-added. We do an extremely good job in committees; however, our raison d'être is
legislation and our sober second thought on legislation. That is the essence of our work and debate in the chamber.
Mr. Franks: I absolutely agree, but in my view the committee work on legislation is often better in the Senate than in
the House, and there is value-added there too.
Senator Milne: Professor Franks, why do you believe that the 180-day maximum for Senate vacancies is too long
and it should be at most, 90 days. In addition, you would suggest amending Senator Moore's bill so that by-elections
are held within 90 days of a vacancy.
Mr. Franks: My reasoning on that is sort of the reverse of the presentation. In his bill, Senator Moore explained the
180 days because it exists in the Parliament of Canada Act; it exists as the time within which a writ must be issued. That
is not when the election is held, but when a writ must be issued.
I find that too long and I cannot defend that length of time. I do not see the sense or rationale in waiting for that
length of time. In fact, I would be happy to have it go down to 60 days for by-elections. I would be comfortable with
that and, using Senator Moore's approach to Senate vacancies; I see no reason for waiting longer than 90 days, as well.
I cannot imagine it takes a Prime Minister more than 90 days to decide on a Senate appointee. It was for the sake of
consistency that I used the 90 days for both recommendations.
Senator Joyal: Professor Franks is it not illogical that the government has proposed Bill C-16 to establish a fixed
general election date to remove the so-called prerogative of the Prime Minister, while by-elections remain at the whim
of the Prime Minister.
Mr. Franks: I think it was overlooked. It is one of the anomalies of our system. It is one that this current Prime
Minister, like previous prime ministers, has used to what he felt would be to advantage in his political games and
machinations of winning seats in the House of Commons. I do not like at this time regardless of what party does it.
That is why I put it what I did there. I think it was just overlooked. On the other hand, you must appreciate that the bill
is now law. The Elections Act has been amended for fixed elections and that means that no election can be held after
that period; it must be by a given date. However, it has nothing that prevents an election before that time. In fact, the
bill states in its initial paragraphs that nothing in this act prevents the Governor General from dissolving a Parliament
for an election. That means that the very firm convention that unless there is an obvious alternative that has a majority
in the House of Commons, the Governor General obeys the demand of the Prime Minister still holds. I will bet you
that over the next 50 years, the result is that we will not have any parliaments longer than four years. However, we will
have some shorter. Likely, the average length of time of a Parliament will be reduced. That is certainly the view of
Eugene Forsey, an honourable member of this institution, and I share his view.
Senator Peterson: The Prime Minister has refused to take this to the Supreme Court and is encouraging provinces to
have elections. In addition to Alberta, some others may do so. If a province disagreed with this procedure, could it ask
that this matter be referred to the Supreme Court?
Mr. Franks: Absolutely. You can ask for anything to be referred to the Supreme Court. The Supreme Court may
choose not to hear it. I believe there will be a time when the Senate not only feels it cannot do its job but cannot do it,
assuming that nothing changes and no one is appointed. At that time, if Bill C-20 on the election of Senate gets through
Parliament, it is perfectly possible that Nova Scotia or British Columbia — feeling hard done by — might ask for it to
be considered by the courts.
Senator Moore: Mr. Franks, when I was putting the bill together, I used the 180 days because it was in the
Parliament of Canada Act and I thought it would be easy for people to associate with and to perhaps support.
One last item is I would like you to comment on the sequential calling of by-elections.
Mr. Franks: I covered that in my 90 days. The by-elections should be held within 90 days.
Senator Moore: Sequentially?
Mr. Franks: Sequential is less important than the time limit. I appreciate you were trying to eliminate the cherry-picking for by-elections. However, if they will be held within 90 days, there will be little likelihood of being able to defer
and try to put something off too long.
The Chair: Thank you very much, Mr. Franks. I want to apologize to you and all senators for my insistence for
moving this along. However, the fact is we do have more witnesses and senators have other committees. This goes
straight to your point about whether we are overworked. Senators do find themselves obliged to be at two committees
at once and that can make life difficult.
For the record, I will invite our next witnesses to come to the table and will remind everyone who they are. Two
learned professors, Don Desserud, and David Smith will join us.
David Smith, Professor Emeritus, Department of Political Studies, University of Saskatchewan, as an individual:
Honourable senators, thank you for inviting me to appear before you today. Although there are two parts to Bill S-224, An Act to amend the Parliament of Canada Act (vacancies), both deal with a single issue: To curb the discretion
of the Prime Minister, first, in the sequence in which by-elections are called to fill vacancies in the House of Commons
and, second, to require the Prime Minister to recommend to the Governor General the filling of vacancies in the Senate
within 180 days of their creation.
Three arguments are advanced in support of these proposals. First, prime ministerial discretion is at odds with the
notion of a properly-functioning Parliament, free from executive influence. Second, prime ministerial discretion used
selectively in the case of House of Commons vacancies and indefinitely in the case of Senate vacancies, interferes with
the right Canadians enjoy under the Constitution, to representation in Parliament. Finally, there is a syllogism. Part A
of the syllogism is the protection of minority rights is a constitutional principle in Canada — see the Secession
Reference (1998). Part B is that a primary purpose of the Senate is to afford protection to the various sectional
interests in Canada — see the Senate Reference (1980). Part C, therefore, the Senate cannot fulfill its constitutional
obligation in the matter of sectional and regional representation if its composition and function, as set down in the
Constitution, are impaired.
Vacancies in the Senate at the current time lend support to this line of reasoning. In British Columbia, with a
population of 3.25 million, 3 of 6 senatorial positions are vacant while, in the 4 Atlantic provinces with a population
2.3 million, 6 of 30 positions are vacant.
The discrepancy accentuates the long-standing grievances about unequal provincial representation in the upper
house while, in the case of British Columbia, it mutes the expression of that province's sectional concerns in the Senate.
Absent any change in policy by the Prime Minister, vacancies are projected to rise from 14 at present to 30 by late 2009.
This is the heart of matter: The vacancies are the consequence of a policy choice by the Prime Minister not to make
An upper chamber of senators appointed for terms as opposed to retirement at age 75 or, better still, one where
consultative elections precede recommendation for appointment by the Governor General is the Prime Minister's
preferred option for Senate reform. Until the Prime Minister has achieved that objective, he has stated he will not
exercise the prerogative of his office and make personal recommendations to the Governor General to fill vacancies in
Here in the self-abnegation of the use of the prime ministerial prerogative to advise the Crown on appointments
rather than in the exercise of the prerogative itself and its implication for the independence of Parliament is the
fundamental issue to be considered.
The prerogative is central to the functioning of constitutional monarchy in a Westminster-style parliamentary
system. Indeed, only with its use can that arrangement of powers, persons and structures operate in a coherent way and
in a manner that permits the realization of the modern Constitution's fundamental principle of responsible
That being the case, is it permissible for the prime minister not to exercise the prerogatives which adhere to his or her
office — and have adhered for more than a century and a half — and which make the principle of responsible
government a political reality? As the first minister in a constitutional monarchy, is the prime minister not obliged to
tender advice to the Crown?
What would one say if the issue at hand were section 96, the appointment of judges, rather than section 24, the
summoning of senators? If, as a matter of deliberate policy, advice were not given to the Crown in respect to
appointing judges to senior courts, would not the argument be made that this inaction eroded the rule of law, another
constitutional principle noted in the Secession Reference, one associated with a sense of orderliness — and that phrase
comes from the Patriation Reference — to the detriment of the courts and their operation? How is the matter of the
failure to recommend appointment of senators different from this hypothetical instance?
I understand that there are strong differences of opinion in and outside of this chamber on the form and function
that Parliament's upper house should take. However strong and however reasonable these proposals may appear to be
to supporters, they do not, in my opinion, allow the first minister in Canada's constitutional monarchy to abdicate his
existing constitutional responsibility to advise the Governor General.
If earlier discussion in this committee is any gauge, the adverse consequences of the Prime Minister's failure to
perform his constitutional duty in the matter of recommending appointments to fill Senate vacancies could be serious
For instance, I believe it is been suggested that the Governor General might make appointments in the absence of
prime ministerial recommendations. Surely, this would be a remedy worse than the disease it is intended to cure. It
would refute the principle of responsible government while at the same time undermine two parts of Parliament — the
office of Governor General and the Senate.
The preamble of the Constitution Act, 1867, speaks of the original provinces of Canada desiring to be
". . .federally united in one dominion under the Crown of the United Kingdom
with a Constitution similar in principle to that of the United Kingdom."
Since the provisions of the Constitution Act, 1867, deal almost exclusively with the structure and powers of the units
of the new federation, one must assume that the preambular phrase just quoted refers to the unwritten constitution
whose purpose, since the mid-19th century, has been to achieve the realization of responsible government in a
The unwritten constitution comprises parliamentary customs, usages, understandings and conventions. Among the
features these elements of the Constitution share in common is the fact that they are not well known to the general
public, if only because there are not set down in written law. It would require some study to speak with authority on
such matters. Interpreters of the Constitution are a rare breed. In consequence, one might think that codifying
conventions, and thus extinguishing say discretionary authority on the part of the prime minister, is an object to be
I am not so sure about this, nor do I think it is easily attainable. To codify the unwritten constitution would be a
complex, difficult and ambiguous undertaking. What I am sure of is that codifying parts of the Constitution seriatim,
so to speak, is a bad idea for two reasons.
First, to codify means to set limits or to rigidify. To do this with only part of the Constitution would set up tension
and create incoherence with other parts of the Constitution. Legislation providing for fixed dates for federal elections is
a case in point. Fixed election dates will work differently depending upon whether there are two or more parties in a
legislature. In the former, majority government will prevail. In the latter, it may not. It is also of some consequence
whether the legislature is unicameral or bi-cameral. The confusion we have witnessed in parliamentary debates in
recent months over what constitutes a matter of confidence suggests to me that the ramifications for government and
Parliament of establishing fixed election dates were not given thorough study.
The second reason why I think codifying the unwritten constitution as proposed in Bill S-224 is undesirable is that it
undervalues what is of central political importance, that is, the Constitution. The Constitution is not a tax code, to be
serially or regularly changed. A constitution requires clarity, certainty and coherence. Inaction instead of action, as the
unwritten constitution demands for the prime minister for the operation of section 24 of the act, supports none of these
values. Senate vacancies and the speed with which they are filled are far more fundamental to good constitutional
government in Canada than an ordinary amendment to the Parliament of Canada Act would suggest.
The other object of Bill S-224 is to statutorily require the prime minister to call by-elections to fill vacancies in the
House of Commons in the order in which the seats become vacant. While both parts of the bill deal with vacancies in
the two Houses of Parliament, the intent of each is different. The Senate provision seeks to protect the integrity of that
body as a functioning part of Parliament in its investigative, representational and scrutinizing roles. The House of
Commons provision, in the democratic-deficit language popular today, seeks a level playing field so that the prime
minister's discretion may not be used for partisan favouritism. It also employs a right-to-representation argument for
those constituents who experience inequitable periods without representation in the Commons.
How could one oppose the House of Commons provision of Bill S-224 except on the grounds of consistency?
Representation of Canadians in the House of Commons is now so distorted because of the formula used and will
remain at some distance from rep by pop principle even if the proposed democratic representation bill is passed that
the premise of Bill S-224 is vulnerable, perhaps not fatally so but vulnerable nonetheless.
To conclude my remarks, let me return to the Senate provision of Bill S-224. There is a real irony in this bill and
what it seeks to accomplish. The Fathers of Confederation were determined that the upper house of the new federal
Parliament should be no plaything of the political executive but rather that it should be independent. One item of
agreement at Charlottetown and Quebec City was that there should be a fixed upper limit on the Senate's numbers. In
other words, there should be no possibility of the Senate being swamped as the Legislative Council of the Parliament of
United Canada had been swamped at the time of the passage of the Rebellion Losses Bill. They all knew this. It was
only 20 years previous. Equally, with an upper limit, there could be no threat of swamping as was to happen in Great
Britain at the time of the passage of the Parliament Act in 1911 when the lords were restricted to a suspense of veto.
Nowhere and at no time was it contemplated that the political executive would seek to achieve its policy ends not by
swamping the upper chamber but by doing the reverse, whatever word might capture that intent —
Inaction was not contemplated because inaction was not conceived to fall within the range of discretionary choice.
Section 11 of the Constitution Act provides for a Privy Council to aid and advise the Governor General. It says
nothing about contemplating withholding aid or advice. The legal or, in the instance of senatorial recommendations,
the conventional limits on discretionary action were set by the need to protect the Crown from the consequences of its
actions by taking responsibility for those actions. In short, there was a constitutional duty to advise.
Don Desserud, Professor, Department of Political Science, University of New Brunswick: Senators, I thank you for
inviting me here today. The bill before us is Bill S-224, to amend the Parliament of Canada Act. It seeks, among other
things, to impose the same conditions on Senate vacancies as currently exist for vacancies in the House of Commons,
or at least similar ones. It is an attempt to see that Senate vacancies are filled in a timely manner.
This is a very intriguing bill, and it raises a number of interesting constitutional questions. The approach that I will
take is the constitutional questions that this bill raises and how I think they can be resolved or not, as the case may be.
The first question is whether this bill is at all within Parliament's competence to pass. The answer is that it probably
is, at least mostly, but the reasons for that, I would argue, are less obvious than some might assume.
Clearly, under section 44 of the Parliament of Canada Act, Parliament has the unilateral authority to amend its own
constitution, and the Parliament of Canada Act is a part of that constitution by virtue of the Constitution Act, 1867,
section 18. However, there are some restrictions, as senators know. One of those restrictions is on the method of
selecting senators, which under section 42 of the Constitution Act, 1982, suggests that any changes to the method of
selecting senators must go through the general formula. At my last appearance here, that was the discussion at hand, so
you are familiar with this subject.
The question becomes, would imposing the 180-day limit on the selection process of a senator constitute an
amendment to the method of selecting senators? It might, if we assume that the Governor General has a right to receive
advice on a Senate appointment that is well pondered and unfettered by time constraints. However, I would suggest
that that argument would be a little difficult to maintain, because surely the Governor General also has the right to be
advised in a timely manner.
The Constitution Act of 1867, under section 32, merely states that in cases of a vacancy in the Senate, the Governor
General shall fill that vacancy by summoning a suitably qualified person. That we do this on the advice of the Prime
Minister, of course, is a constitutional convention. It is an important convention because it is intrinsic to our system of
responsible government; however, the timeline or how long this should take is not mentioned. It might be that the
Governor General has the right to delay such an appointment as long as she wishes. I would suggest that this is
probably unlikely, because undue delay would undermine the integrity of Parliament itself. It also might mean that the
Prime Minister has the right to ponder such advice as long as is needed, but surely, again, the right of the Governor
General to be advised in a timely manner would trump such an indulgence.
The problem is whether the relationship I am referring to here between the Governor General and the Prime
Minister and the advice so sought is within Parliament's competence to legislate, and that I do not know. It could be
that the bill before us is actually clarifying the terms of that relationship rather than changing it. If it is simply
clarifying what this advice is meant to be and what was assumed a part of that advice, then it is, to me, within the
competence of Parliament to pass. However, if it is not, then I would suggest you need more advice to find out whether
this fits in with a unilateral amendment.
Another question I would like to raise is the question of wording, because the bill specifically calls on the Prime
Minister to make this recommendation. It does not do what we normally see in legislation, referring instead to the
Governor-in-Council. In the Parliament of Canada Act, there is no mention specifically of the Prime Minister, with
two exceptions. The Prime Minister is mentioned in terms of salaries and in a new section whereby the Conflict of
Interest and Ethics Commissioner reports to the Prime Minister. I am wondering why the term Governor-in-Council
was not used rather than Prime Minister. I suspect I know, and perhaps you will tell me if I am right. I suspect it is
because if you did say Governor-in-Council, you would be clearly legislating on the powers and responsibilities of the
Governor General, and therefore this is a way of avoiding that. However, my question then becomes, has this really
avoided that problem?
I refer you back to a ruling by Speaker Michener in 1960. He argued that Parliament cannot call upon the
government to take one course of action or another, and this has been a point of constitutional debate for some time.
I am saying this in an ambiguous way because I know about that quotation because of an article by Eugene Forsey
who argues that Michener is wrong in saying they cannot, and Forsey says of course they can call upon the government
to take action because they can advise. However, both concluded that in the offering of that advice, it was not
necessarily an obligation for the Prime Minister or the Governor-in-Council to follow that advice.
I do not know how to work this out, because I conclude that the legislation is probably within the competence of
Parliament to enact, and it probably does not affect other sections of the Constitution in terms of the amending
formula, but I do not know what would happen if the Prime Minister were simply to refuse to follow the legislation. I
do not know how you would enforce such a provision and whether this act provides any way in which those provisions
could be enforced.
I find myself in a conundrum. I see the point. I see where it is going. I see the purpose of it. I am not 100 per cent
convinced it can work in its current form. I will leave it at that and invite your questions.
The Chair: Thank you very much. We do, of course, have questions.
Senator Andreychuk: Thank you, both, for your presentations. They were intriguing. You have brought interesting
perspectives to this bill, which at first blush, seems short and crisp, but you brought out more nuances and legal issues.
Professor Smith, are you saying that some of the problems associated which not making appointments is because no
bill has come because of inaction by other prime ministers. Is it the number of vacancies or some other trigger
mechanism that gives legitimacy to this bill? You have said it is the Prime Minister's statement that he would not
exercise his prerogative. Are you resting your case of the Prime Minister's statement that he will not exercise his
prerogative, or on the cumulative number of vacancies?
Mr. Smith: I think it is the former and not the latter. It seems to have been stated as a public policy. My analogy
then is to the courts. If the same thing were done with the courts and the prime minister said he would not appoint
judges and starve the courts of personnel that would bring the rule of law and the administration of the courts into
disrepute. How, then, is it different with regard to the Senate? Obviously it is different in many ways, but how is it in
principle different from the Senate? I would put to one side my view or anyone else's view about reform of the Senate.
That is a separate matter. The consequences of action or, in this instance, inaction are actually almost palpable given
what was said a few minutes ago when the other witnesses were here.
I cannot see a difference in principle. Is it possible for the chief adviser of the Crown not to give advice when in fact
it is only on advice that you have democratized our system of government? How then can you not give advice? I do not
think discretion extends to not doing something. It has a breadth of range of things you may do, but I not think it
includes doing nothing.
Senator Murray: What is the remedy?
Mr. Smith: Maybe I need to take longer to work it out. I respect Senator Moore and the proposed amendment. I
think it is always easy with the unwritten constitutional question of conventions to say these are small things that no
one understands and they really do not matter. It does matter. It matters fundamentally. However, this is the weak
position because you are forced to argue about something that is difficult to see why it matters. Ultimately, it comes
down to this being a constitutional monarchy. It is the representative of the sovereign that performs the actions on
advice. We used to teach about responsible government and its achievement.
It was through this kind of advice that the Governor General acted. If you do not give the advice, where are you? It
seems to me that the system grinds to a halt. There is a paralysis. It is not only that there are not more senators. There
is a paralysis elsewhere.
There is another aspect of this. Parliament has three components and at least two are affected by not doing this. It
detrimentally affects the Crown; it detrimentally affects the Senate; and it affects the House to some degree through the
It is sufficiently significant that it needs to be made a matter of a resolution. I do not think constitutional
amendments should be made this way unless it is fully clear that is what we are doing. This almost disguises that fact,
either deliberately or inadvertently by following this route. It is much more important than that. Prime ministerial
discretion is an important aspect of our Constitution and has always been. To ignore that by an ordinary amendment
undervalues what is occurring here.
Senator Andreychuk: The Prime Minister has said he will not exercise his prerogative and you used the judges as an
example. Consider that the prime minister says I am not going to appoint any other judges because I want to put in
place a different, more meritorious system of appointing judges. The prime minister may set a quasi-judicial group of
police or former police, lawyers and some members of the public at large. That process may take some time to work its
way through. It is not a prime minister saying I will not appoint judges because I am going to starve the system.
Is that not similar when you have a prime minister who says I am not going to make appointments because I want to
have an election process in place?
Mr. Smith: These matters are far too important for prime ministers to determine in a democracy. Our historic way
of dealing with these matters has been things such as white papers and royal commissions. These are fundamental to
the way we govern ourselves and not to be determined by a single individual despite recognizing that prime ministers
have great power and necessarily so in many instances. However, that does not mean there are no limits to prime
I certainly could not see that an analogous situation regarding the courts in which there would be no comment. The
courts must function; that is a fundamental test of whether government is working and they cannot function if the
judiciary does not properly staff them. Presumably, the same applies to the Senate. This is separate from the question
of wanting a reformed Senate which many people do. Some people may want to abolish the Senate, but that is different
from this question.
Senator Andreychuk: It seems to me that one remedy would be the next election. I am more confident that people
understand issues. I think that if we have ground to a halt, would not this be a matter of discussion? Different parties
could take this up as an intensely important democratic issue to bring to the electorate in the next election?
Ms. Smith: Yes, I think the purpose of Parliament is to take notice, to inform and to scrutinize. I am not sure that
excludes doing something else prior to an election.
Senator Andreychuk: I am building on this because you said resolution might be the way to do it. It seems this
follows that line of reasoning.
Senator Joyal: Professor Smith, if you conclude that there is a constitutional duty to advise, then what is the
sanction of the breach in our institution to say the constitutional principles that are ours?
Let me suggest an approach. The Supreme Court has ruled that conventions are a very important part of our
Constitution. The Patriation Reference ruled that there was no specific responsibility under the Constitution for the
government to seek provincial concurrence. Nevertheless there has been a convention established in the opinion of the
court. The court ruled, not in unanimity, but with more than 50 per cent. The court came to the conclusion after
reviewing historical precedents in the way former provincial and federal governments have behaved.
The court concluded that it could not prevent the federal government from proceeding with the resolution, but that
the resolution would be illegitimate. The Prime Minister of the time called another meeting and there was an
Would it not be a possible for a province to seek a reference to its Court of Appeal stating that the Prime Minister
has a constitutional duty to advise and asking its court to pronounce on that duty? The court pronouncing would
probably not grant an injunction against the Prime Minister to advise, because it is not the proper procedure under our
constitutional principle. However, the court can conclude, as you did, that there is a constitutional duty to advise. For
that very principle of institutional integrity, as long as the Constitution remains the same, the Prime Minister has to
abide by those principles. The Prime Minister has to abide by those principals or seek the respective level of
concurrence from the other parts of the Constitution to come to terms with it. Professor Desserud mentioned section
42 or section 44, depending on the level of the changes that are sought. Is that not one way for that constitutional duty
to be sanctioned by the court when there is a breach of it?
Mr. Smith: Although I am not a lawyer, it is my understanding that the provincial governments go to their Courts of
Appeal, as the previous government of the Province of Saskatchewan submitted to the Court of Appeal the question of
equalization. With regard to patriation, three provincial Courts of Appeal examined this right; that is the root.
It seems to me the plaintiff, although that is a wrong language in a reference, or the initiator would be a provincial
government. While there are senatorial regions, the senators are assigned to provinces. Nova Scotia and British
Columbia only have three senators. It would seem to me one argument would be that we only have 50 per cent of the
number of senators.
There have been delays in the past, but going back to the point about it being a public policy, if indeed that can be
verified, which I think it can, then that would be the argument for going to the Court of Appeal and then the Court of
Appeal rendering its opinion on this matter as to whether indeed there is a constitutional duty to advise and that the
chief adviser to the Crown is derelict in not giving this advice. I am not quite sure after that what happens.
Senator Joyal: It is in the court of public opinion.
Mr. Smith: There is a court of public opinion. In parliamentary systems, it is the political dynamic that takes over,
the public opinion, the media and so forth — not so much the law but public opinion.
Senator Joyal: As I said, according to our principles, a court cannot grant an injunction against an adviser to the
The Chair: There is, to the best of my knowledge, no rule against BlackBerrys in committee, although there is a rule
against BlackBerrys in the Senate chamber. We have had a Speaker's ruling about that. The general rule is, unless
otherwise specified, proceedings and demeanour in committee follow the rules in the chamber.
I have until very recently not had occasion to think that BlackBerrys were actually impeding the functioning of the
committee, and I would ask all senators to govern themselves accordingly.
As we were. Had you concluded, sir?
Mr. Smith: Yes, I have concluded on that point.
Mr. Desserud: It is actually a very simple solution but you will think it outrageous when I tell you. If the Prime
Minister were not performing the functions that he is supposed to perform, then the prerogative of the Governor
General would kick in. The Governor General does not have to wait for advice.
If that ever happened, and she ever exercised that prerogative, it would precipitate a massive constitutional crisis
because we would not know what to do. That is still the law of the land. The Governor General does not have to wait,
and a court ruling as you described could clarify that situation. That is not so much ordering somehow how to advise
but it is clarifying the legal position of the Governor General with respect to the Constitution in making those
appointments. That is still open.
I am not suggesting that this is a smart thing to do. One of the advantages of the Westminster model we follow is
that we tend to favour political solutions over legal solutions to these problems, so probably this situation will work
itself out through the political machinery including, as Senator Andreychuk said, in the next election.
There are other solutions beyond that, and I am sure you have thought of them, not the least of which is something
similar, a joint address to the Crown requesting that something be done. That is a legal possibility for Parliament.
Whether that is politically possible is another question.
There is the availability of the partisan senators to rally the opposition parties in the House of Commons to force a
non-confidence vote. Your suggestion, Senator Joyal, of asking a province or consulting with a province to see whether
they can make their own reference case is perfectly legitimate. Again, please do not think I am recommending such a
course of action, but when a crisis is imposed on you, you can react in kind so you force your crisis back.
Having said all that, I am a little alarmed by how seriously we are taking the words of the Prime Minister when he
says he intends not to do X, Y and Z. Are these policy or political statements? If they were said during an election
campaign, we would take them one way. If they were said in this environment, how serious are they?
Before we jump into crisis management, which I seem to be good at, as I said, I would like to see the situation calm
down a bit and perhaps see what will happen. This legislation is interesting. It will provoke more questions. If it gets to
the House of Commons and goes through committee there, many interesting questions will be raised. To me, that
would be the safest course of action, to let the legislation proceed and see what occurs. I am not as alarmed as I think
others might be.
Senator Milne: Professor Smith, you are against this bill, but you have not offered us any solutions. As we are living
in the effects of the Prime Minister's present inaction, what do we do when the Prime Minister refuses to do his duty?
This is not just a prerogative of the Prime Minister. This is, as you said in your presentation, the constitutional duty of
the Prime Minister. You are saying that our hands are tied and just let the things fall out as they may.
Mr. Desserud has suggested a few other approaches to deal with it, and one of them is letting this bill proceed to see
what comes of it.
We are not to too likely to get a presentation to the Governor General from both Houses of Parliament. That is
highly unlikely. Would this bill, in effect, have the effect of shaming the Prime Minister into actually doing something?
Mr. Smith: I could not speak to that. I have never met the Prime Minister.
The gist of my comments was that this issue is very important and central. As my colleague says, one must be clear
that this is not a false issue.
If it is not, I think it is an extremely important one, more important than I think an amendment to an existing
statute would suggest as a remedy. Although I do not see what the Senate itself could do, I would prefer that a province
would seek a reference opinion from its Court of Appeal. It is the province whose interests are affected directly. What a
court would say, I have no idea; but I think that would be the remedy; and it would be the remedy on several grounds.
One is that it would be a very public one. That is important in the sense of informing and making the issue clear to the
public. Senator Andreychuk has suggested, perhaps, in an election. That could be a second extreme.
As I said earlier, matters of convention are subtle and often difficult to articulate. A Court of Appeal would be a
better forum to canvass the range of the issues.
Senator Moore: Mr. Smith, I listened to your answers to Senator Milne. I still do not know what your answer is
regarding an alternative. Are you suggesting that we simply submit to this policy by this Prime Minister vis-à-vis the
Senate aspect of the bill?
Mr. Smith: I support the intent, the principle or the motive behind the impending legislation. I think the issue is
more central than the remedy that is being suggested. Perhaps one has to take a less overt action, but I do not think it is
a desirable one. I would much prefer to see the issue of the convention of advice examined and pronounced upon rather
than working this route.
Senator Moore: The Parliament of Canada Act already constrains the Prime Minister. He has to call a by-election
within 180 days. If that is the situation with the House of Commons, why is it wrong for the same situation to prevail
vis-à-vis the Senate?
Mr. Smith: It is not wrong, but it is substantively different. What is happening with regard to the Senate and the
inaction of the Prime Minister is to alter the Senate in its fundamental character by not appointing senators. That
seems to me be quite different as to when a by-election is held for a vacancy for a seat in the House of Commons.
Senator Moore: It is still a constraint on the discretion of the Prime Minister on both issues; a constraint is a
constraint regardless of which House.
Mr. Smith: Again, I am not necessarily in favour of constraint of discretion. If the idea is that the Prime Minister
should have no discretion, I would not support that. I think the prime ministerial government requires discretion. I
think you need to have that. The question is how much discretion and what context. Are there to be some limits?
However, I am not opposed to discretion. I do not think the parliamentary system can work without prime ministerial
Senator Moore: Do you mean unfettered or unlimited discretion? I am not just speaking of this Prime Minister, but
past prime ministers as well. I am speaking about prime ministers of any stripe. I do not think it is right. That is why I
took this initiative.
Mr. Smith: You do not think discretion is right?
Senator Moore: I do not think the time that they were taking was right. I felt the prime ministers were taking too
long to fill the positions and in taking that time were not fulfilling the constitutional rights of Canadians to have
representation in the Houses.
Mr. Smith: The current limit on the Prime Minister concerning the House of Commons came about because of
public opposition; there was a lot of criticism in the House 20 years ago or so that the government was derelict in that
Senator Moore: It did not account for the sequential calling of by-elections, which has been an abuse by all prime
ministers since the clean up that you are talking about 20 or so years ago.
Mr. Smith: If you will have a requirement that there be by-elections, the filling by sequence of vacancies seems to be
a reasonable procedure to follow; if you are going to have a statutory requirement that they be filled. I cannot see a
principled reason to oppose that. My principal argument is with regard to discretion; I do not object to prime
Senator Moore: I wondered what your thoughts would be if did the reverse - if we were lengthening out the time
period. Would we be doing that? I do not think so.
Mr. Smith: No, we would not.
Mr. Desserud: There is always a problem when we are dealing with these constitutional issues, particularly issues
dealing with conventions. One, we look at the issue of whether a certain action should or should not occur, is it the
right thing to do, should people do it and are they being a good person if they do it or not. The second issue is do we
have the constitutional mechanism or power to force the person to do what we think is the right thing?
The two issues are separate and they are not easy to keep separate. Morally, the senator is correct: If the Prime
Minister is not making Senate appointments to undermine deliberately the integrity of the Senate, then that is immoral.
Do we have a remedy within our Constitution to prevent that action? No, we do not have a very good one. The fact
that we do not speaks to the problem we have with our Constitution, including, may I say it, the very way in which we
select our Governors General. We have not dealt with these things. I had a list of possible solutions when you were
This solution is from the political scientist. We love constitutional conferences. I know no one else does but I miss
those days. Maybe that is what we need. It is not just this issue; there are so many of these issues that include fixed date
elections, which I have spoken about before, the electing of senators, the possible electing of senators, et cetera. There
are lots that are in the hopper. I think maybe it is time for another round.
Senator Murray: Mr. Smith says he is not against discretion. I take it that he is not against placing limits on prime
ministerial discretion, but that the issue is what limits and in what context and therefore, the issue before us will be
whether the limits proposed by Senator Moore are reasonable, in a free and democratic society.
Not enough focus has been paid to the fact that Senator Moore, a Liberal, and his Liberal colleagues are proposing
and supporting a bill which, if it is passed in a timely fashion, would result in the appointment of 20 or 30
Conservatives to the Senate. For sheer high-mindedness, it would be hard to find anything exceeding that in our
As far as the government's long-term intentions on Senate reform are concerned, I think it has to be observed that a
lot of this is more apparent than real.
The government brought in a bill to the House of Commons on Senate tenure on November 13, I believe. They
brought it forward in February for a day's debate and nothing has been heard of it since. They brought a bill in
November on so-called Senate consultative elections. By February, they remembered it was there and they brought it
forward for a bit of debate, whereupon it was sent to a legislative committee, which has been examining it in fits and
starts ever since. I think it is fair to make the point that the Senate reform initiatives of the government are not a very
Senator Moore: It is not as good as this.
Senator Murray: It is not as good as my constitutional resolution to improve the Western Senate.
Senator Andreychuk, an election, whatever it produces, will not force provinces to hold Senate elections. A federal
election will not force them to do so and I do not know how many are thinking of it.
I do know, because I informed the Senate 18 or 20 years ago when I was in a position to do so, that it was the view of
the government, on advice, that the Alberta legislation for Senate elections was ultra vires from stem to stern, not just
in one or two respects. My reading as a layman of the legal documents relating to that was and is that it will be very
difficult for a provincial government to come up with Senate election legislation that was intra vires that province. We
are going nowhere there.
As for this abomination called Senate consultative federal elections that has been brought in by the government,
three provinces, I think I am correct, have already indicated that not only will they not hold those elections but that if
the bill goes through and gets Royal Assent, they will go to court to challenge it. I think it is Quebec, New Brunswick
and Ontario. The quick route, of course, if the government were serious about Senate reform, would be to send that bill
to the Supreme Court of Canada immediately for a judgment as to whether it is intra vires the federal Parliament
One of the reasons I support this bill of Senator Moore is that the Prime Minister has declared it as his intention,
and I take it seriously, that he will not fill Senate vacancies unless candidates for the Senate are somehow elected. He is
the first Prime Minister to have indicated that he will not exercise his discretion. My second reason for doing so, or one
of the factors, at any rate, is that the so-called Senate reform initiatives proposed by the government are going nowhere
slowly, and I think the government knows that perfectly well. What the fate of this bill will be, I do not know, but I
intend to support it.
Mr. Desserud, you said something that alarmed me slightly when you suggested that if this bill were challenged on
the grounds that it was interfering with the method of appointment and the prerogative of the Prime Minister to
recommend, at his leisure, names of Senate candidates, that it could be interpreted as simply clarifying the advice.
What alarmed me about it was the possibility that the same argument might be used to justify what I call this
abomination of federal consultative Senate elections.
Mr. Desserud: You are talking about Bill C-20. I just finished a paper on Bill C-19, and Bill C-20 became a footnote.
Although I argue in that paper that the intent of Bill C-20 is clearly a violation of the method of selecting senators as
indicated in the Constitution in section 42 because it restricts itself to advice, and there are authorities that have
predicted such a thing will happen, the advice does not have be followed. Since the advice does not have to be followed,
it is possible it avoids that problem. It is a back door way of doing something that is not front and centre.
My main position, which I made when I was here last year about another bill, is that we have a wonderfully flexible
set of amending formula in our constitution that tries to consider all contingencies, and one of those contingencies is
we really do not know what the effect of the proposed amendment will be. We have a general formula that we can use,
and that is what we should be using that. It is a basic constitutional principle. If in doubt, go to section 38.
Senator Murray: Are you arguing that Bill C-20 is intra vires the federal Parliament?
Mr. Desserud: No, I think it avoids cleverly that charge. I think it could be. I think the intention certainly is, but
because it is worded carefully, it may well avoid that charge.
The Chair: I think Senator Murray is asking if you are arguing that Bill C-20 is intra vires the federal Parliament.
Mr. Desserud: I think it might be because of the clever wording. In intention, no, but in legal script, yes. I am not
saying I like the bill, but I think they can get away with it.
Senator Milne: I understand that both of those bills are on the Order Paper for debate this week in the House of
Commons, so they are finally disinterring them again. In that bill, the Prime Minister is narrowing his own prerogative.
He is voluntarily narrowing his prerogative. He goes to consultative elections and narrows himself into choosing
senators who have so-called been elected. This whole argument of discretion, it seems to me, falls apart.
Mr. Smith: The whole argument to maintain the integrity of the discretion falls apart because the Prime Minister is
supporting a bill that would allow its limitation?
I think the question is how far may a prime minister alienate his or her discretion, and is it binding on the next? I do
not think it is self-evident to me that a single prime minister can do that. Discretion is a bit like sovereignty. What can
be done with regard to discretion? Can it be alienated away? I am not sure that is possible. Permanently, I am not sure
that it is. If we go back to the business about law, and law being coherent and predictable, I am not sure that this lends
support to that view of law.
The Chair: This committee is just endlessly interesting.
Senator Joyal: Let us go back to the Repatriation Reference. The reference began in 1980 when Manitoba, Quebec
and Newfoundland wanted to fight the federal government. Under the convention, there was no amending formula.
These provinces were opposed to the federal government initiative and wanted to stop it from moving along with its
resolution. At the point in time when the federal government realized that it would be stuck with three different
references from three different Courts of Appeal, it decided to make its own reference to the Supreme Court of
Canada. The federal government decided to fight the provinces on the legal grounds of the interpretation of the nature
of the convention.
The Supreme Court handed down its ruling and even though it was not legally binding because it interpreted the
convention, it was seen as a legitimate ruling to inspire the action of the federal government. The federal government
acted to seek the concurrence of at least seven provinces. Following that, there was an agreement to define the
convention in a statutory, constitutional form, namely, the 7/50 amending formula that we now have in section 38 of
Let us take a parallel route to the situation we are in now. The federal government wants to force the provinces to
adopt consultative, municipal, whatever elections. Many provinces do not want to go that route. I will speak for my
own province, which is on the record many times on this issue.
I think Quebec is right not to go that route because I happen to share the views of Senator Murray that it is ultra
vires; the responsibility of the provincial government under section 92. Section 92 has no residual clause except the last
one, which says "all matters of a private or local nature." That has nothing to do with a local nature; it is a House of
Parliament. I strongly share that view.
The federal government wants to push provinces to take a certain route, but provinces are resisting. The retaliation
on the federal side is to say, "If you do not go that route, you will not have senators to speak on behalf of your
sectional and minority interests," as you appropriately stated. That is very serious. Minority interests are a defining
principle of this country. It would not have been a federation if there would not have been protection of minority
interests. I do not need to retell our history.
A province would see two political routes to adopt in such a case either a preventive initiative by making a reference
to its Court of Appeal, thus forcing the Government of Canada probably to go to the Supreme Court, which we saw
that in the patriation reference. The other option is to wait until federal legislation is adopted and is already on the
record to challenge the constitutionality of that legislation.
Professor Desserud, even though Bill C-20 might be dressed up within the competence of Parliament, the test the
Supreme Court would apply is in pith and substance. The pith and substance of this bill is essentially to establish
elections. As the common dictum says, "If it walks like a duck, is dressed like a duck and quacks like a duck, it is a
duck." Similarly, it is an election.
A prime minister would feel much more compelled to appoint a senator who has been
"elected" than to appoint
someone of his own or her own choice. There would be no more discretion. The only discretion left is within those who
are supposed to be elected. It reduces the scale of those being elected.
It seems to me that our Constitution, in its broadest terms, provides some ways and means. There is the political
route, as Senator Andreychuk alluded to — an electoral campaign; a platform. Plebiscite or referendums are not part
of our Constitution. It is an opinion, but some provinces who might want to concur into that reform would have to
hold referendums besides the federal election. Manitoba and B.C., and there are three other provinces that have
provincial referendum acts to directly seek the concurrence of their own citizens. In other words, we have in the whole
of the panoply of the tools at stake an element of pressure to bring a result that would yield a legitimate result if we
want to have proper and sound reform.
The bill we have before us, through the initiative of Senator Moore, is a bill that seems to be innocuous, as you have
said, because it seems to be simple. It raises many questions, but it has exactly the same weight as a constitutional
resolution or the initiative of the government. The government says "If we are
to change things, here is a proposal. Let us see if we can change things."
This is exactly the same route. If that bill were to be adopted, someone would question the constitutionality of it, or
a province can have a reference on it. It is part of the parliamentary initiative to try to come to terms with a
fundamental problem. Can we have an institution, one of the two Houses of Parliament, depleted to a point where it
cannot give its advice and consent to the Governor General in the proper and legitimate form that it has been created
to give? That, too, is a very important compelling element of the Constitution.
The Chair: Is this a question?
Senator Joyal: Is it not a possibility to address the issue in a responsible way?
Mr. Smith: You make quite a strong case for using that route from that perspective; that is, that it becomes the
grounds for challenging the inaction of the Prime Minister in making appointments. Is that right?
Senator Joyal: Yes.
Mr. Smith: I suppose that is one possibility. I had not thought of that particularly. I was looking at it from the way I
think most people would look at it, which is not actually seeing it as the end game in terms of what the ultimate
objective is, which, as you lay out, would be to challenge the use or non-use of discretionary power.
Senator Joyal: Yes, the non-use of it.
Mr. Desserud: I would agree with almost everything you said. I still say this with reluctance because this is not about
Bill C-20, so we should not get caught up in it. Maybe you are right, and I hope you are right, about how a court would
respond. I am not 100 per cent convinced. Otherwise, yes, I agree if terms of strategy that this is probably the moat
sensible one that you have before you. There are others. Some are dangerous and some are not as sensible. However,
letting the legislation go through to see what happens is as good as any.
Senator Andreychuk: You are saying to get this through and see what happens. Would that not be more dangerous?
That would then be the position we could take on virtually every law.
Mr. Desserud: No, I argue that this is okay; that it is within your competence to do so. I say it is tricky and I think
you might need more advice on some areas I do not know the answers to. In balance, I think it is okay. I would not
suggest you do something unconstitutional.
Senator Moore: Mr. Smith, you seem to be focused on the matter of prime ministerial discretion. This bill would
require things to happen in set periods of time; it would be consistent with what is there now in terms the House of
Commons and filling of vacancies — 180 days and a by-election called sequentially.
We had Mr. Franks before us earlier this afternoon. His position is that there should be a lessening of discretion to
90 days so that the citizens can have their constitutionally-guarded rights of representation in both Houses.
What do you have to say about that?
Mr. Smith: I heard him say that. Not to be disputatious, but why not 45 days? The trouble with time limits is that
there seems to be no particular rationale for one or another. If short is what you seek, make it shorter. I do not see that
90 days is particularly better than 180 days. Why not make it shorter still?
It is one of the troubles with limits. I do not think they are particularly self-evident often; the reasoning is not
necessarily self-evident. A limit is a limit; that limit can simply be chosen. I do not particularly support making it 90
days. There could be some argument to say that 90 days is better, but what would be the argument?
Senator Moore: In terms of the fact that 180 is the number of days now provided for —
Mr. Smith: There is a precedent for 180, so that kind of coherence seems to make at least some arithmetical
Senator Moore: That is consistent and has been in the past.
Mr. Smith: Yes; however, once you go beyond that, it is not at all clear to me.
Senator Moore: You would not go the other way and lengthen it out to 360 days?
Mr. Smith: No. In one of your earlier meetings I believe Senator Murray raised a comment. I know we have fixed
election dates in a very Canadian way — fixed election dates, maybe. What is our national sport, lacrosse or hockey? It
is this institutional ambivalence. We try to meet all standards.
As I recall, Senator Murray raised the point of what do you do if you have 180 days and there will be an election, we
think, in 140 days or even in 220 days, will we go ahead with an election?
Senator Moore: That is provided for already.
Mr. Smith: How is it provided for?
Senator Moore: In the House of Commons.
Senator Milne: In the Elections Act.
Senator Moore: There is a section that deals with that.
Mr. Smith: How do you anticipate that?
Senator Moore: There is a provision in the statute now.
The Chair: We have kept the witnesses nearly 45 minutes longer than we promised to keep them. We are very
grateful to them. This has been an extremely interesting session. I meant it when I said this committee is endlessly
fascinating, and this has been one of the more interesting sessions. We are very grateful to you both.
Senator Stratton: This is not a point of order but something I wish to raise. The rule in the Senate chamber with
respect to any kind of electronic device is that if it emits a noise or causes interference by noise it is disallowed.
You can use your BlackBerry in the chamber; you can use your laptop in the chamber. They went to the extent of
changing the microphones in the chamber to prevent that noise interference.
The Chair: Unsuccessfully, but they tried.
Senator Stratton: Ninety-nine per cent of the noise is now eliminated. I can set my BlackBerry on my table top and it
does not cause interference in the chamber. With respect, that is the rule.
The Chair: You are right Senator Stratton. This came up very quickly and I did not want to have a long excursion
into this issue because we had substantive things to discuss.
My understanding of the Speaker's reasoning in those rulings is that the object was to avoid interference with the
proceedings of the chamber, to avoid having proceedings of the chamber disrupted, either in general or locally.
Senator Stratton: By the noise.
The Chair: Whatever.
Senator Stratton: As a comparison, in the House of Commons, BlackBerrys are allowed, Madam Chair.
The Chair: At the point at which the issue was raised, I made the point of saying there was no rule against the use of
them here, but I also tried to allude to the need to avoid disrupting procedures. You may recall that there appeared to
be a fascinated conversation going on in connection with, it appeared, something that was legible on a BlackBerry at
that time. That discussion was on the verge of becoming, perhaps, a disruption of the proceedings for other senators
who wanted to listen to the witness.
Senator Stratton: That part I can accept.
The Chair: That was the point I was trying to raise, and I really think that, while it was not a ruling, it was a strong
suggestion, and I would propose that we now conclude these proceedings.
Senator Andreychuk: I propose we take that up in the steering committee.