The Special Senate Committee on Senate Modernization has the honour to present its

Your committee, to which was referred Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate), has, in obedience to the order of reference of Thursday, October 6, 2016, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

SERGE JOYAL

Deputy Chair

Observations

to the Eleventh Report of the Special Senate Committee on Senate Modernization (Bill S-213)

1. The committee wishes to note that during the course of its study of Bill S-213, it invited two constitutional scholars to assist the committee in understanding the constitutional implications of the Bill: Professor Kate Glover from the Faculty of Law at Western University, and Professor Benoît Pelletier from the Faculty of Law at the University of Ottawa.

The evidence received from Professors Glover and Pelletier has raised concerns as to whether Parliament alone is competent to amend the Constitution Act, 1867 to achieve the principal objectives of the Bill: to enable the Senate itself to select and remove its Speaker and to remove the Speaker’s deliberative vote and replace it with a tie-breaking vote.

The committee notes that clause 1 of the Bill amends section 34 of the Constitution Act, 1867. The effect of the amendment would be to eliminate the Governor General’s role, and thus the role of the executive, in selecting and removing the Speaker of the Senate. Concerns were expressed that such an amendment could alter a fundamental feature of our constitutional order. If so, the constitutional change proposed by clause 1 may likely require the unanimity amending procedure under section 41 of the Constitution Act, 1982. That procedure would require the consent of all the provinces.

Clause 2 proposes to amend section 36 of the Constitution Act, 1867 by removing the Speaker’s general deliberative vote with a right to vote only in the event of a tie. According to the evidence received by the committee, such an amendment could require substantial, though not unanimous, provincial concurrence under the amending procedure in section 38 of the Constitution Act, 1982, which calls for the consent of at least seven provinces representing at least 50 per cent of the population of all the provinces.

2. The committee also wishes to draw to the attention of honourable senators that the Special Senate Committee on Senate Modernization has recommended to the Senate a process to enable senators to express preferences to the Prime Minister for the selection of a Speaker. Recommendations 5 and 6, now found in the sixth report of the committee, propose that the Senate vote by secret ballot to select up to five nominees, whose names would be submitted to the Prime Minister, for consideration in making his recommendation to the Governor General for the selection of the Speaker. The recommendations also propose that the Speaker pro tempore be elected by the Senate by secret ballot. The committee draws the sixth report to the senators’ attention for the purpose of reminding the Senate that the sixth report reflects the intent of the committee to allow senators to participate in the selection of the Speaker.

3. This committee’s decision to report Bill S-213 back to the Senate without amendment, and with each clause of the Bill having carried on division, reflects the committee’s desire that the full Senate should have the opportunity to debate bills and consider their merits, and, in this case, the merits of Bill S-213 along with the proposals in the sixth report. The decision, however, is not to be construed as support for the bill.