Canada coa_shield

Debate concerning Bill S-8
An Act respecting the selection of senators

Extract from the Hansard, 40th Parliament, 3rd session: October 20, 2010  2

with personal comments inked in

Resuming debate on the motion of the Honourable Senator Brown, seconded by the Honourable Senator Runciman, for the second reading of Bill S-8, An Act respecting the selection of senators.  3

Hon. Serge Joyal: Honourable senators, in the past four years, the government has introduced four different bills involving Senate reform, either in the Senate or the other place, which have dealt with either the length of term or the election of senators: Bill S-4 and Bill C-43 in 2006; Bill C-19 in 2007; and Bill S-7 in 2009. They all died on the Order Paper.  4

A fifth bill dealing with senators' tenure, Bill C-10, was introduced in the House of Commons on March 29 and is currently at second reading in the other place. Still a sixth one, Bill S-8, was introduced in the Senate on April 27, and establishes a scheme for the election of senators. The constitutionality of all six of these bills, based on section 44 of the Constitution, has been questioned by a large group of constitutional experts and scholars from universities across the country.  4-1

At least four provinces — Ontario, Quebec, New Brunswick, and Newfoundland and Labrador — have sent extensive briefs to the Senate supporting their common position, which is that any change that would alter the fundamental characteristics and nature of the Senate, and would impair its independence in providing sober second thought to legislation, is a constitutional amendment that requires the formal concurrence of the provinces under the 7/50 amending formula.  4-2

The "7/50 amending formula": An amendment to the Canadian Constitution requires the consent of et leat seven provincial legislatures representing at least fifty percent of the Canadian population.  n4-2

In view of this overwhelming testimony, the Standing Senate Committee on Legal and Constitutional Affairs recommended, with respect to Bill S-4 in 2007, that the question be referred to the Supreme Court for a ruling to determine the constitutional right of the Parliament of Canada to proceed with such a fundamental change. The government, however, refused. This refusal was despite the fact that the government has recently decided to refer the issue of its capacity to establish a national security commission to the Supreme Court for a ruling considering the clear opposition of Quebec and Alberta, and of reservations by Manitoba and British Columbia. The government seems to be of the opinion that it is important, if not essential, to clarify the jurisdiction issue for the stability of the stock market, but it does not think that the certainty of the legislative process in which the Senate plays an integral and essential role should be guaranteed. The issue is not a trivial one. If a change is made to the status of the Senate without the appropriate legal process, the validity of any legislation adopted by such an altered Senate will be null and void. This effect is no small matter.  4-3

The Canadian government chose to introduce this bill without any in-depth study or reflection on the introduction. Each of the bills introduced successively by the Canadian government were modified without any explanatory paper that demonstrated a convincing reflection on the role of Parliament and the role of its components.  4-4

Bill S-8, which is under discussion, is a strange if not bizarre legislative creature. In my opinion, Bill S-8 is a totally ultra vires bill and is invalid on at least three counts.  4-5

First, Bill S-8 is in open conflict with section 42 of the Constitution, which provides that "the method of selecting senators" falls under the 7/50 amending formula. In other words, it is not up to the Parliament of Canada, acting alone, to make changes that affect "the method of selecting senators."  4-6

The second count of invalidity centres on the long-recognized constitutional principle that the federal Parliament cannot delegate powers to the provinces. Each legislative authority is sovereign in its exclusive field of jurisdiction. This principle, in fact, is at the core of our federal structure of government.  4-7

This paragraph brings up a caviat concerning my propsal for the future appointment of senators.  n4-7

The third count of invalidity contends that the legislature of a province cannot usurp or legislate in a field or domain of competence that is not allocated to it. In other words, a provincial legislature cannot act in areas that are clearly under the competence of the federal government or Parliament.  4-8

Each of these three counts of invalidity is substantive. Each needs to be more fully explained.  4-9

First objection is that Bill S-8 aims to change "the method of selecting senators" through provincial elections. Bill S-8 does not propose, as did its predecessor, Bill C-43, to select senators following a federal election under the supervision and responsibility of the federal Chief Electoral Officer, with financing rules based on those similar to the election of members of the other place. Rather than producing a federal electoral process, Bill S-8 has turned the tables around. It now assigns the whole electoral process to the provincial legislature and its lieutenant governor.  4-10

Bill S-8 contains three "whereas" clauses and three other short clauses relating to the federal government, not more than one page, while the bulk of its 51 provisions outline the electoral processes that the provinces must adopt for the election of candidates to Senate seats. Those provisions are entitled "Framework For The Selection Of Senators."  4-11

However, before going into further detail regarding that framework to elect senators, the first question is does Parliament have the power to enact that kind of framework for the election of senators?  4-12

The Constitution provides a clear answer to that question and so does the Supreme Court ruling of 1979 known as the Senate reference.  4-13

Honourable senators, section 42 of the Constitution states quite clearly that the powers of the Senate and the method of selecting senators may be made only in accordance with the 7/50 amending formula.  4-14

The title of Bill S-8 is clear on its substance: "An Act respecting the selection of senators" and in French, "Loi concernant la sélection des sénateurs."  4-15

The bill does not hide its intent to provide for a different selection process for candidates to the Senate. As its summary states, it establishes ". . . a framework for electing nominees for Senate appointments . . ." Moreover, the bill establishes a statutory obligation for the Prime Minister to consider the elected nominees. The summary provides:  4-16

    . . . the Prime Minister, in recommending Senate nominees . . . would be required to consider names from a list of nominees submitted by the provincial or territorial government . . .  4-17

The last section of the bill, section 3, states it more forcefully:  4-18

    . . . the Prime Minister . . . must consider names from the most current list of provincial nominees elected . . .  4-19

It would not be up to the Prime Minister to look at that list and set it aside to pick nominees of his or her own choice. According to Bill S-8, on the basis of the electoral framework provided in the bill and implemented by a province or territory, the Prime Minister has a clear statutory obligation. The Prime Minister must consider those names. The courts have interpreted the word "must" in statute law. If the process provided in any act is followed in its entirety, the obligation that ensues is conclusive. In the opinion of the court, the word "must" is a common imperative. "It expresses command, obligation, duty, necessity and inevitability."  4-20

There is no doubt that Bill S-8 proposes a radical departure from the current practice whereby the Prime Minister has sole discretion in submitting any name for summons by the Governor General provided that the conditions of qualifications stated in the Constitution are met. No one would question that.  4-21

The intent of the bill is expressed in the very first "whereas" of the bill, and I quote:  4-22

    Whereas in 1987 the First Ministers of Canada agreed, as an interim measure until Senate reform is achieved, that any person summoned to fill a vacancy in the Senate is to be chosen from among persons whose names have been submitted by the government of the province or territory to which the vacancy relates . . .  4-23

The text of that "whereas" has a well-known constitutional history. It stems from the failed Meech Lake Accord of June 1987. As honourable senators are aware, two provincial governments failed to adopt the accord in their legislature within the prescribed limit of three years. Despite the sincere efforts made by its proponents, the accord failed in the end when both Manitoba and Newfoundland did not endorse it. The Meech Lake Accord proposed at its paragraph 4 that during the interim period of three years from 1987 to 1990, to fill vacancies in the Senate, the Prime Minister had to choose among the names that would have been given by the provincial government provided — and it is a major, if not inescapable, condition — that they were acceptable to the Queen's Privy Council.  4-24

Again, we all know that the Meech Lake Accord failed June 23, 1990, and that it was never proclaimed as the new constitution. It had no legal force or effect.  4-25

The Premier of Alberta, Don Getty, recognized it with sadness in a formal declaration on June 25, 1990. He said, "The dramatic gains that we would have obtained through Meech Lake are gone and it is a huge loss to this province." Premier Getty commented on Senate reform: "We just do not have the tools for it or the commitment."  4-26

Two years later, the federal government proposed a new accord to all Canadians through a national referendum; the Charlottetown Accord. The accord provided for an elected and equal Senate at sections 7 and 8:  4-27

    . . . that senators are elected either by the population . . . or by the members of the provincial or territorial legislative assemblies.  4-28

    Federal legislation should govern Senate elections, . . .  4-29

    . . . Senate elections be held as soon as possible, . . . at the same time as the next federal general election.  4-30

However, the Charlottetown Accord failed to be endorsed by six provinces. Even Alberta, which was so keen to act on Senate reform, voted 60.2 per cent against the accord, as did all three of the other Western provinces, with British Columbia having the highest opposition at 68.3 per cent. Consequently, as with the Meech Lake Accord, the Charlottetown Accord died and never had legal force or effect.  4-31

Let us return to Bill S-8. What does the very first "whereas" of the bill state? It declares:  4-32

    . . . any person summoned to fill a vacancy in the Senate is to be chosen from among persons whose names have been submitted by the government of the province or territory to which the vacancy relates;  4-33

The second "whereas" provides that those names submitted by the provincial government be determined by democratic election.  4-34

In other words, the first "whereas" of Bill S-8 restates the substance of the Meech Lake Accord and the second "whereas" restates the substance of the Charlottetown Accord.  4-35

The intention of the bill is clear. It is made up of the same constitutional substance as were the amendments in the Meech Lake and the Charlottetown Accords. Those two "whereas" clauses shed light on the understanding of the statutory obligation imposed by section 3 of the bill whereby the Prime Minister must consider names from the most current list of nominees selected through the process of provincial or territorial election.  4-36

Can we conclude otherwise that the nature of Bill S-8 is identical in pith and substance to those amendments that were contemplated in the constitutional accords of 1987 and 1992 and that they are, in fact, equivalent to a fundamental change in the method of selecting senators?  4-37

What did the Supreme Court have to say about such changes? The analysis of the nature of the changes contained in Bill S-8 has in fact been the object of a ruling by the Supreme Court of Canada in the Senate reference of 1979. The question put to the court by the Canadian government of the day following the contestation by some provinces of the capacity for the Parliament of Canada to enact the kind of changes contained in the form of Bill C-60 was the following:  4-38

    Is it within the legislative authority of the Parliament of Canada to adopt legislation altering the upper house of Parliament so as to change the method by which members of the house are chosen by providing for the direct election of all or some of the members of the upper house by the public?  4-39

The court unanimously answered:  4-40

    The selection of senators by a provincial legislature or by the Lieutenant Governor of a province would involve an indirect participation by the provinces in the enactment of federal legislation.  4-41

The court stated:  4-42

    The substitution of a system of election for a system of appointment would involve a radical change to one of the component parts of Parliament. As already noted, the preamble to the Act referred to "a Constitution similar in principle to that of the United Kingdom," where the Upper House is not elected. In creating the Senate in the manner provided for in the Constitution Act, 1867, it is clear that the intention was to make the Senate an independent body which could dispassionately canvass the measures adopted by the House of Commons. This was accomplished by providing for the appointment of members of the Senate with tenure for life. To make the Senate a wholly or partially elected body would affect a fundamental feature of that body.  4-43

The court was clear. The appointment of senators, currently the function of the Governor General, having some members selected by another body, the Lieutenant Governor-in-Council or selected following public election, is beyond the power of the federal Parliament. Hence, the introduction in 1982 of section 42(e) of the new Constitution, which states that "the method of selecting senators" is beyond the capacity of the federal Parliament acting alone.  4-44

Since the changes brought by Bill S-8 are in pith and substance of the nature of a constitutional amendment, they cannot be enacted by Parliament alone under section 4 of the Constitution. Such changes are covered by section 42 and require the concurrence of seven provinces totalling 50 per cent of the Canadian population. If the government wanted to initiate such a constitutional amendment, there is only one way to proceed, which is not the way of Bill S-8. The government has to introduce a formal constitutional resolution in the House of Commons or in the Senate and ask the concurrence of the provinces as provided in section 38 of the Constitution.  4-45

Our conclusion on the first count of unconstitutionality is clear. Bill S-8 in substance and form is ultra vires of the power of the federal Parliament.  4-46

The second reason why Bill S-8 is constitutionally invalid centres on the long-recognized constitutional principle in our federal system that Parliament cannot delegate any of its responsibilities to the legislature of a province.  4-47

What does Bill S-8 purport to achieve? Bill S-8 does not provide for a framework or selection of senators to a federally controlled process, one which former Bill C-43, introduced in 2006, proposed to enact.  4-48

The fundamental defect of Bill S-8 is that it is not a federal bill for a federal process under the control of federal authorities. Bill S-8 seeks to enact a framework for the legislature of the provinces and territories. In other words, the federal Parliament is using its legislative power to enact provincial legislation. The third "whereas" of the bill explains this provision:  4-49

    And whereas it is appropriate that a framework be established to provide guidance to provinces and territories for the text of legislation governing such elections;  4-50

There is no side door or quid pro quo to the meaning of the objective. The federal Parliament intends to adopt an act that clearly delineates, in all its details, the kind of act that the legislatures of provinces and territories need to adopt to elect senators. This shift of responsibility to the provincial legislatures is unconstitutional and the courts have said so for more than 130 years.  4-51

The seminal case on this issue is known as the Lord Nelson Hotel Co, Ltd. case, decided by the Supreme Court in 1950. The issues involved in that famous case are analogous to those at stake in Bill S-8. The Parliament of Canada then enacted legislation to delegate to the Nova Scotia Legislature the capacity to adopt legislation concerning matters that had not been assigned to it. The court stated clearly:  4-52

    The Parliament of Canada and the Legislatures of the several Provinces are sovereign within their sphere defined by the . . .  4-53

— Constitution.  4-54

    They can exercise only the legislative powers respectively given to them by sections 91 and 92 of the Act, and those powers must be found on either of these sections . . . . Under the scheme of the . . .  4-55

— Constitution —  4-56

    . . . they were to be . . . watertight compartments which are an essential part of the original structure.  4-57

This interpretation of exclusive and respective legislative authority for each level of government, whether federal or provincial, is almost as old as our own federation. In 1880, Justice Taschereau, in Citizen's Insurance Co. v. Parsons, stated that the:  4-58

    . . . Federal Parliament cannot . . . give, either expressly or impliedly to the local legislatures, a power which the Imperial Act does not give them. This is clear, and has always been held in this court to be the law . . .  4-59

In 1899, in the case of C.P.R. v. Notre Dame de Bonsecours, the court stated:  4-60

    I think we must get rid of the idea that either one or the other can enlarge the jurisdiction of the other or surrender jurisdiction.  4-61

Justice Kerwin, in the Lord Nelson case, stated:  4-62

    The Constitution divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to a different division. . . . To permit of such an agreement would be inserting into the Act a power that is certainly not stated and one that should not be inferred.  4-63

What Bill S-8 purports to achieve is the transfer of responsibility for electing Senate nominees to the provincial legislatures and lieutenant-governors, giving them sole responsibility over supervision and financing.  4-64

Bill S-8 contains a "text of legislation" — those are the very words of the bill — governing such elections for the provinces to enact. This technique of legislative delegation hurts the very core of our federal structure of government. The courts have long understood that the outcome of such an approach would be the destruction of the very division of power between the two levels of legislative authorities:  4-65

    For it is within the Powers of Parliament and of the Legislatures to confer upon each other by consent, a legislative authority which they do not otherwise possess . . . the same powers will naturally exist to enact laws affecting all the classes of subjects enumerated in Sections 91 and 92 of the Act.  4-66

Justice Taschereau added:  4-67

    It is a well settled proposition of law that jurisdiction cannot be conferred by consent.  4-68

In other words, Bill S-8 proposes a "text of legislation" governing the election of nominees for the provinces to enact, even though this principle is contrary to the long-standing interpretation of the courts that each level of government is restricted to act within the confines of its exclusive field of authority under section 91 and section 92.  4-69

In The Law of the Canadian Constitution, third edition, W.H.P. Clement, a noted constitutional scholar, writes:  4-70

    Provincial legislation which, ex hypothesi, requires federal legislation to support it is not legislation at all.  4-71

The corollary is also true, as Justice Taschereau has concluded in the Parsons case:  4-72

    The powers of the federal authority cannot, to such an extent, be dependent upon the consent and good-will of the provincial authorities.  4-73

In other words, the federal Parliament cannot delegate its legislative authority to the provincial legislature even though they would accept to enact the proposed "text of legislation," just as the federal Parliament cannot be dependent upon the consent and the goodwill of the provincial authorities to fill Senate seats in the manner it deems appropriate.  4-74

However, there is still more implied in Bill S-8. Bill S-8 proposes to have the nominees elected under provincial legislative authority. The question is this: Does the federal Parliament have authority to legislate for the establishment of an electoral process to select Senate nominees? As mentioned earlier, such a proposal is equivalent to a fundamental change in the method of selecting senators, and it is clearly beyond the capacity of the federal Parliament.  4-75

Then the trick is, if the federal Parliament cannot legislate on its own to establish such an electoral scheme, can it not subcontract it to the province by offering to appoint the nominees that are elected through a process that the federal Parliament seeks to establish through Bill S-8? This scheme is a shell game — hiding the pea under a different shell. This principle is at the core of the objective of Bill S-8.  4-76

The federal Parliament cannot push or invite the provinces to act on its behalf or for its own purposes when the Constitution does not allow it to do so directly. The courts have already put their finger on such a scheme and have repudiated it.  4-77

In 1936, the Manitoba Court of Appeal held as follows:  4-78

    Neither the Dominion nor the Province can delegate to each other powers they do not expressly possess under the B.N.A. Act.  4-79

In other words, if the federal Parliament cannot legislate on such a scheme of electing the senators, it cannot subcontract it to the provincial legislatures and incite them to do so by a commitment to appoint their elected nominees according to an electoral process already defined by the federal Parliament and for future enactment by the provinces.  4-80

Bill S-8 is legislating an election scheme for the provinces to enact. This bill is strange on legislative grounds. The federal Parliament, which consists of the Queen acting by and with the advice of the Senate and the House of Commons, would enact a "text of legislation" to provide the legislative text to provinces and territories, which thereafter would be adopted by another legislative authority of a different constitutive existence, that is, the lieutenant governor with the consent of the legislature.  4-81

In such a twist, federal law becomes provincial law, adopted under a different legislative authority. The court in the Nelson case has been adamant on the issue:  4-82

    The exercise of delegation by one for another would be an incongruity . . .  4-83

— in federal organization —  4-84

    . . . for the enactments of a State are of its own laws, not those of another state.  4-85

In plain words, a delegation of responsibility implies a delegator capable to delegate and a delegatee capable to accept. The Supreme Court has clearly and definitely stated that the federal Parliament can no more delegate a legislative responsibility to the provincial legislature than can the provincial legislature accept on its own the delegation of legislative authority. Such jurisprudence from Canadian courts fully answers the second count of constitutional invalidity of Bill S-8.  4-86

The third constitutional objection to Bill S-8 is that the legislature of a province cannot legislate in a field or domain of competence that is not allocated clearly or that falls under one or the other paragraph enumerated in section 92 of the Constitution Act, 1867. To be clear, without the formal constitutional amendment, provincial legislatures have no jurisdiction to enact legislation to establish an electoral scheme to elect Senate nominees.  4-87

Let me be clear. The Senatorial Selection Act of Alberta, first adopted in 1989 and amended in 2000, and Bill 60 of Saskatchewan to similar effect adopted in 2009 but not yet proclaimed, are of no constitutional validity, being ultra vires of the power of provincial legislatures.  4-88

The premise of Bill S-8 lies in the fact that the legislature of Alberta enacted a bill in 1989 for the election of senators for the province to fill a vacated seat for Alberta. Once elected, they are referred to as "senators in waiting."  4-89

The origin of the Alberta act stems from the Meech Lake Accord of 1987. Let us recall that at the time of its signature, it was provided that until the accord comes into force within three years, that is, becomes part of the Constitution of Canada, the government of a province "may submit the names of persons to fill a vacancy and those summoned shall be chosen from among whose names have been submitted."  4-90

By those words, the provinces have no obligation to provide names. However, once names have been given, a person among those names would be recommended to the Governor General for appointment, provided the name "be acceptable to the Queen's Privy Council for Canada."  4-91

It was paragraph 4 of the Meech Lake Accord. There was no mention in it of an election process from which the name of such a person should be provided, and discretion was still left to the Queen's Privy Council to determine if that person was deemed acceptable. The accord mentions no criteria of any sort to determine such acceptability. It was left entirely to the good judgment of the Queen's Privy Council. That section of the Meech Lake Accord was meant to be enforced during the three-year period of its ratification until June 23, 1990.  4-92

Before the accord came into force, the Government of Alberta at the time introduced legislation entitled the Senatorial Selection Act, which was adopted in August 1989, one year before the Meech Lake Accord lapsed. The Alberta act contained three "whereas" provisions which gave the overall intent of the act.  4-93

The first "whereas" recalled the position of Alberta in relation to the Triple-E Senate.  4-94

The second "whereas" referred specifically to the Meech Lake Accord, and the opportunity for the government of the province to submit names of persons to fill vacancies. However, it should be noted that the discretion left to the Queen's Privy Council in the accord was omitted from the "whereas." It is not mentioned anywhere in the Alberta act.  4-95

The third "whereas" goes way beyond the text of the Meech Lake Accord by providing for the election of senators, an issue which was not even mentioned in the text of the Meech Lake Accord.  4-96

The Alberta act continues with the establishment of an electoral scheme to elect senators-in-waiting under the sole responsibility of the provincial legislature. Those same "whereas" provisions were kept in the new Alberta act, which was adopted in 2000, and in Saskatchewan's Senate Nominee Election Act, which was adopted in 2009 but not yet proclaimed. Those acts offer the same intent in the two opening "whereas" provisions.  4-97

As one realizes by the historical background of those two acts, the Meech Lake Accord never committed to transfer the responsibility to provide for the election of the respective senators to the provincial legislature. There might have been talk, but the text of the accord never refers to such a constitutional amendment. Moreover, the commitment of the federal government to appoint persons to the Senate whose names would have been submitted by provincial governments only lasted during the ratification of three years and certainly ceased to have any effect when the accord collapsed in June 1990.  4-98

Beyond June 1990, no provincial government could claim to expect that the names of persons it would submit should be appointed. It could mount public objections, make multiple statements, lobby or use pressure of whatever sort, but such claims have no legal legs to stand on.  4-99

Moreover, the Senatorial Selection Act adopted in Alberta in 1989 and in Saskatchewan in 2009 has no legal base with regard to the Meech Lake Accord and, thus, have absolutely no effect.  4-100

The evidence is that everything had to be renegotiated in the Charlottetown Accord of 1992, but the Charlottetown Accord was also rejected by a majority of Canadians in a national referendum held on October 26, 1992, including Alberta, with 60.2 per cent; and Saskatchewan, with 55.3 per cent. Any commitment to which the federal government might have subscribed in those two accords has become null and void and is of no legal effect.  4-101

Let us ask another question. Since there is no constitutional authority granted to the provinces because those two accords failed, does the Constitution Act, 1867 allocate to the provinces, in section 92, the jurisdiction necessary to enact legislation providing for the election of Senate nominees? This is the crux of the question.  4-102

Let us put it in simpler terms. Did the Fathers of Confederation want to give to the provinces, in section 92, the jurisdiction necessary for the provinces to enact an election act for senators? We do not think that anyone with a minimum knowledge of the Confederation debate could doubt for one instant the intent of the Fathers of Confederation on the nature of the Senate. Would it be an elected body or an appointed body? There can be no doubt about the answer to this question. The intention of the Fathers of Confederation was to have an appointed Senate, not an elected one. As a matter of fact, our institutional forerunner, the Legislative Council of the Parliament of the United Canada, was made into an elected body in 1856, well before Confederation. The ensuing problems between the two elected chambers at the time were well known to the Fathers of Confederation. They did not want to continue to extend such a system in the new federal Parliament.  4-103

Would the Fathers of Confederation have been so unwise and careless as to have left the back door open so that, one day, the provinces could restore an elected Senate?  4-104

The Supreme Court has had an opportunity to consider the nature of the Senate and its essential character as an appointed body. In the Senate reference of 1979, the court stated:  4-105

    In creating the Senate in the manner provided in the act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons. This was accomplished by providing for the appointments of the members of the Senate. . . .  4-106

Considering the intent of the Fathers of Confederation and the court interpretation of the appointed nature of the present Senate, can we again identify in section 92 of the act any heading that would give the provinces the legislative capacity to enact election schemes to elect persons for Senate appointments? When one considers the 18 headings of section 92 and the scope they entail with regard to the past court decisions, there is not even the smallest opening left for the provinces to enact such legislation.  4-107

There is no way that the federal Senate can be part of the constitutional power of a province. There is no constitutional base in the Constitution Act, 1867 upon which to draw the conclusion that a provincial legislature could have the competence to enact legislation for senatorial election.  4-108

Let us take another example: judicial appointment. Section 96 of the Constitution is entitled "Appointment of Judges." It states:  4-109

    96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province . . .  4-110

Could we make a parallel reasoning and contend that a legislature could enact a bill providing for the election of nominees for judges to be appointed by the federal government for that province? Raising this hypothesis illustrates the kind of outcome one might expect if one were to contend that provincial legislation can wade into any federal field of responsibility.  4-111

Section 24 of the Constitution Act, 1867, entitled "Summons of Senators," states:  4-112

    24. The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; . . .  4-113

By legislating to elect senators-in-waiting to occupy a seat in the Senate, both the Albertan and the Saskatchewan legislatures have attempted to make laws in relation to a matter "assigned exclusively to Parliament or the Government of Canada and consequently prohibited in their provincial legislatures."  4-114

On several occasions, the Supreme Court has established the limits to the legislative initiative open to each level of government in our federation. As recently as in 1998, in the Reference re the Secession of Quebec, the court unanimously defined the scope of the principle of constitutionalism in the following manner:  4-115

    That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional power to itself unilaterally.  4-116

The meaning is clear. A provincial legislature cannot usurp the powers of federal Parliament or government by adopting legislation to unilaterally give itself additional power that it does not have constitutionally.  4-117

However, the disturbing consequence following from the Alberta Senatorial Selection Act was the ensuing decision taken by Premier Stelmach of Alberta on Thursday, April 29, 2010, whereby he unilaterally postponed the forthcoming election of senators-in-waiting, taking by surprise all proponents and supporters of Senate elections in the province. Through a cabinet decree, the premier extended the terms of its existing senators-in-waiting by three years, that is, until 2013, after the terms run out this coming December. The Alberta press was very critical, denouncing the decision by stating that this illustrated the Alberta government's fear of the Wildrose Alliance Party winning the election. An article in the Edmonton Journal stated that "to do otherwise would be to widen the democratic deficit, not close it. To do otherwise by not calling the election would be to offer Canadians more proof that for too many Conservative politicians the definition of democratic deficit is simply a time when we do not get our way."  4-118

Some Hon. Senators: Hear, hear.  5

Senator Joyal: Honourable senators, is this the kind of thinking that Bill S-8 invites the provinces to enact in bringing new ideas and modernizing the institution of the Senate of Canada, to quote from the text of the former Bill S-4?  6

The argument alleged by the sponsor of Bill S-8 that the Alberta legislation has not yet been contested in the Canadian court system does not give it any more validity. It is not by appointing a senator-in-waiting for an Alberta seat that the federal government has cured the fundamental defective nature of the Alberta Senatorial Selection Act. The precedents here are of no value to cure the ultra vires nature of that act. Even if 10 or 20 senators-in-waiting would have been appointed in the past, this would not have made the process of their election valid. One has only to remember the decision of the Supreme Court of Canada in 1985, declaring null and void after almost 100 years all legislative activities of the Manitoba legislature in relation to the use of official languages. Time and numbers are of no healing value. What is null and void remain always of no effect and can only create uncertainty and deception in the end.  6-1

It is not by inviting the provinces to act legally, by circumventing the Constitution, that the political objective of an elected Senate will be reached. The Constitution of our federal state contains a clear demarcation of legislative authority. The election of senators cannot be achieved by ignoring the legal framework that defines the nature of our system of government. The Constitution guarantees the certainty, reliability and trust that Canadians enjoy under our rule of law. One would expect another measure of statesmanship and transparency in the process to transform our institution of Parliament so fundamentally. Constitutionally, this approach is doomed to fail.  6-2

Honourable senators, I have not addressed the institutional aspect of making the Senate of Canada an elected "provincial" chamber as provided in Bill S-8. I would need just as much time to review the overall implications of transforming the Parliament of Canada so fundamentally.  6-3

Make no mistake: to have two elected chambers in the same legislative process would have numerous and profound consequences. To enumerate some of them to persuade you that such a proposal needs sober second thought, here are five elements of concern. First, according to Bill S-8, there would be the introduction in the Senate of members who could be, for the large part, elected members for provincial rather than federal parties. In other words, the composition of the Senate would resemble that of 10 provincial legislatures. The political allegiance of senators would then be to their own provincial political parties. In any debate of federal legislation, amendments and votes, the elected senators would take the position of their alter ego in provincial legislatures, whether on the side of the government or that of the official opposition. Would that make Canadian Parliament more effective and the country more united? To ask the question is to raise a thousand questions that need to be seriously reviewed.  6-4

Second, if the Senate becomes a house of provincial parties, should the Senate have the equivalent powers in relation to legislation to those of the House of Commons, minus the budget bill and constitutional change?  6-5

Third, would such a house become easily fractured with no majority and become the ploy of interest groups with no bearing for the sake of Canada as a whole?  6-6

Fourth, how would adjustments be made between the federal parties represented in the Commons and the provincial parties in the Senate, when the groups operate independently from one another with different provincial election acts? For example, financial contributions range from $9,300 in Ontario, open to corporate donations; $3,000 in Quebec, with no corporate donations; $15,000 in Alberta, $30,000 during an election year; and no limits in Saskatchewan and New Brunswick.  6-7

Are we making the Senate more effective, representative of a better federal state, or are we not bringing the cat into the pigeon's house?  6-8

Such an initiative would bring radical change to the structure, dynamics and distribution of power between the two houses of Parliament. Is the initiative of Bill S-8 so innocuous and of such limited substance that these changes can be brought without constitutional amendment?  6-9

That is certainly not the view held by several provinces. At the request of the Leader of the Opposition, three provinces clearly stated their position. Then New Brunswick Premier, Shawn Graham, wrote the following on April 9, 2010, to the Leader of the Opposition in the Senate with respect to Bill S-8:  6-10

    It remains the view of our government that holding election for senators and adjusting the tenure of office without addressing other more pressing concerns regarding the nature of the institution, including its size, composition and powers relative to the House of Commons would give the illusion but not the substance of democratic reform.  6-11

The Minister of Intergovernmental Affairs of Ontario, Monique M. Smith, wrote the following regarding Bill S-8 on April 20, 2010, last spring:  6-12

    As you know, real Senate reforms require constitutional change, and we do not think it would benefit Ontario or Canada for Parliament to be launched into a discussion on Senate reform that could lead to broader potentially divisive constitutional negotiations. We do believe, however, that changes to the Senate require the consent of the provinces and that unilateral federal action is unconstitutional.  6-13

On March 31, 2010, Quebec's minister of intergovernmental affairs, Robert Dutil, wrote the following about Bill S-8:  6-14

    Senate reform, as proposed by the federal government, would change the fundamental characteristics of that institution. Accordingly, such a change is beyond the power of Parliament acting alone. We believe it is vitally important that Senate reform, and the subsequent impact on all federal institutions and on the balance of relations within the federation, be debated in the appropriate constitutional context.  6-15

As one realizes, to quote former Senator Michael Pitfield in the foreword of the book Protecting Canadian Democracy, the initiatives contemplated in Bill S-8 are of untested consequences. He said the following:  6-16

    In constitution-making it is important to bear in mind that the first step in reform is almost never the final step.  6-17

He continues:  6-18

    Because a government is a large system with an overall equilibrium of its own, any change in one place is bound to have repercussions elsewhere—sometimes in surprising and far-off places, sometimes with far-reaching and even contradictory effects.  6-19

And the world is an even much larger system continually shifting toward equilibrium. It is by integrating the thinking of diverse branches of expetise that we seek to avoid unexpected surprises. That's why we would want a Senate constituted as a highly integrated think tank.  n6-19

Honourable senators, we cannot proceed with Bill S-8 without guarantees of its constitutionality. Moreover, the changes that Bill S-8 would implement cannot be adopted by this chamber without a complete study of their substance, of their impact on our federal system and of the overall consequences they would have on the federal-provincial quality of our country.  6-20

Hon. Hugh Segal: Will the honourable senator take a question?  7

Senator Joyal: With pleasure.  8

Senator Segal: I thank Senator Joyal for accepting a question.  9

Honourable senators, I was struck, if I may say so in the preamble to my question, by three aspects of senator Joyal's argument, that I found profoundly troubling. I ask, whether on reflection, might Senator Joyal also find them profoundly troubling.  9-1

The first is that even though we are the only federation in the world that has its constitutional court, the Supreme Court of Canada, and our second chamber appointed solely by one level of government, does Senator Joyal not think any constructive effort that is constitutional to improve on that circumstance might be in the interests of the federation and the survival of this country over the long haul? Other federations have come to similar decisions.  9-2

The second part of my question is with respect to the Senatorial Selection Act of Alberta, which is one of the provisions that led to my seatmate being with us, the only individual in this chamber with a direct multi-hundred-thousand vote plurality, sending him in this chamber to the consideration of the Prime Minister for appointment. There has been no constitutional challenge of that act, despite its so-called controversial nature, as our good friend has pointed out in his analysis. Does Senator Joyal not think that the burden of proof with respect to that constitutionality should be on those who might challenge it and take it to the courts? The absence of such challenge, although the provision exists for any jurisdiction to have done so, indicates that on a de facto basis it has been accepted as democratically feasible and appropriate.  9-3

Third, on various occasions in his analysis and very thoughtful speech, he made the assertion that Bill S-8 changes the way our Constitution provides for the appointment of senators. One of the reasons I would argue he might consider this bill going to committee for thoughtful analysis and interpretation is that many of us would take the view that the right of the Prime Minister, by instrument of advice to His Excellency, to appoint a senator is in no way diluted, diminished, diverted or reduced by this bill. All this bill does is create the radical, insane proposition that the people of a province might be given the chance to democratically express a view as to who might be on the list from which the Prime Minister would make a recommendation to His Excellency or Her Excellency, as the case may be.  9-4

On the basis of that difference of opinion, would the honourable senator not be of the view that the great Liberal Party, committed as it has always been to the future of Canada, not in ways with which I agree but nevertheless sincere, would benefit from participating in moving this bill to committee so that Canadians could hear his arguments, could hear contrary arguments, and could have the kind of thoughtful analysis that stopping the bill before approval in principle would deny the country?  9-5

Does he not in any way worry that the many efforts, to which he made reference quite graciously at the outset of his comments, to reform this place having been frustrated, set aside, diluted, allowed to die or referred in some kind of spiritual way to the Supreme Court for further analysis, might create the impression, perhaps unfairly, that the Liberal Party remains a centralist, status quo, anti-democratic, anti-federal, anti-cooperative federalism institution working against the survival of Canada if they take his advice on this issue?  9-6

The Hon. the Speaker pro tempore: I regret to inform Senator Joyal that his time is up. Would he like to ask the house for more time to respond?  10

Senator Joyal: Yes.  11

Hon. Gerald J. Comeau (Deputy Leader of the Government): Five minutes.  12

The Hon. the Speaker pro tempore: Honourable senators, is it agreed that Senator Joyal can have five more minutes?  13

Hon. Senators: Agreed.  14

Senator Dallaire: He can have how much time? No one says absolutely five minutes. It could be ten minutes.  15

The Hon. the Speaker pro tempore: Senator Comeau, did I correctly hear you to say "five minutes"?  16

Senator Comeau: Yes.  17

Senator Joyal: I would like to thank Senator Segal for his three questions, and I hope to answer all three of them.  18

First, is it not strange that we are one of the only federations in the world in which appointment to the Supreme Court bench and the upper chamber lies solely in the hands of one level of government? Canadian constitutional history is full of proposals for changes to the Supreme Court of Canada. My honourable colleague will remember Quebec's five proposals in the Meech Lake Accord for changes to the process for appointments to the Supreme Court that would have given Quebec some guarantees it was seeking. There were also provisions to that effect in the Charlottetown Accord.  18-1

The problem is not that this or another Parliament did not want to proceed with that. In fact, in those days there was a consensus in Parliament to move with the Meech Lake Accord and Charlottetown Accord. The problem was that Canadians rejected them for reasons other than that specific amendment, but the overall result was that they were lost. As I said, they were not lost because only Quebec or only Ontario refused. Six provinces voted to put it in the Clarity Act in a clear way.  18-2

On the second question, those changes have to be well thought out. One thing puzzles me about the six bills relating to Senate reform that we have seen pass like trains in the last four years. When the Blair government in Britain wanted to reform the House of Lords, they appointed the Wakeham Royal Commission. Some may think that royal commissions take a century to come forward with recommendations, but that is not true. The Wakeham commission came forward with recommendations for substantive reform within a year and a half of its formation.  18-3

There was the intellectual capacity under the leadership of Lord Wakeham to make proposals to allow for serious and rational debate on changes. Moreover, in the three years following the tabling of the Wakeham report, the then government published three different white papers on different aspects of reform of the House of Lords. In the end, they were able to achieve some of the reforms, albeit not all.  18-4

At least they now have a statutory commission for appointments.  18-5

One could question the way that has operated due to various situations that I will not go into here, but those who are interested certainly know of them. At least they now have a body for appointments that seems to have made the House of Lords more legitimate than it was when appointments were the sole prerogative of the Prime Minister.  18-6

It is possible to move forward when one takes the right course of action to provide for intelligent debate—not intelligent design. I think that we have put the cart before the horse. We have had six bills in the last four years, each one different from the others, each one changing something different, but the explanation and the reflection do not seem to be tangible. In my opinion, we should be reflecting on that on both sides of this house.  18-7

Come to think of it, a house that functions as a non-political think tank has no "both sides."  n18-7

Finally, as I stated in my opening remarks, at least four provinces questioned the constitutionality. That was not me, not Senator Fairbairn, Senator Fraser, nor any other senator. Among them were my own province, Newfoundland and Labrador, and New Brunswick. If in 2008 the government had put forward the question of the constitutionality of the Alberta Senatorial Selection Act, we would have today a framework for moving ahead. As long as we move around in the dark, we will have to find our way by feeling for the walls and, in the end, we will not be sure of reaching the door. That is what concerns me.  18-8

Hon. Bert Brown: Honourable senators, I thank Senator Joyal for his long speech.  19

The Hon. the Speaker pro tempore: Senator Joyal's time is up, so it is not possible to ask a further question. If Senator Brown speaks now, it will have the effect of closing the debate.  20

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Hon. Serge Joyal
Some Hon. Senators
Senator Joyal
Hon. Hugh Segal
Senator Joyal
Senator Segal
The Hon. the Speaker pro tempore
Senator Joyal
Hon. Gerald J. Comeau
The Hon. the Speaker pro tempore
Hon. Senators
Senator Dallaire
The Hon. the Speaker pro tempore
Senator Comeau
Senator Joyal
Hon. Bert Brown
The Hon. the Speaker pro tempore