Today, the new Minister of Democratic Institutions, Karina Gould, announced that the Liberal government has officially abandoning the objective of electoral reform. Thus, notwithstanding the promise that 2015 would be the “last federal election conducted under the first-past-the-post system” made during the 2015 electoral campaign, Canada will be faced with more elections which permit very small percentages of the voting public to put in place electoral majorities.
As 2016 fades into the distance, I thought that it might be useful to look back and see what were some of the biggest constitutional developments in the Old Year. There were many but I think that a few stand out for me. A number do not involve constitutional judicial determinations but they are major Canadian constitutional developments nonetheless.
On October 27, 2016, the Prime Minister named nine new senators to the Senate, with 12 more to be appointed in the coming days. These new “independent, non-partisan” senators along with their future fellow colleagues will soon comprise the largest “bloc” of senators in the Upper House, surpassing the Conservative senators. What Prime Minister Trudeau has done by moving to a non-partisan, merit-based appointment process is major parliamentary reform, all without the need for any constitutional amendment whatsoever.
Government ministers and opposition leaders were in a flap this last week. The Senate dared to amend Bill C-14, the bill on physician-assisted dying and strike out one of the qualifications that the House of Commons had insisted on – namely, that natural death be reasonably foreseeable. Opposition Leader Rona Ambrose stated in response on June 9, 2016:
“We have the courts making laws in this country and now we have an unelected Senate changing the laws of an elected House….”
Minister of Health Jane Philpott stated that the government was “concerned” about the amendments to a bill that “has been supported by a vote in the House of Commons”. Justice Minister Jody Wilson-Raybould called the amendment a “significant one” and said that it would “broaden the regime of medical assistance in dying in this country and we have sought to ensure that we, at every step, find the right balance that is required for such a turn in direction.”
The Minister of Democratic Institutions, Maryam Monsef, has announced the creation of a special committee to investigate and oversee what sort of electoral process should be adopted in time for the next federal election, currently slated for 2019. In my view, the committee approach she is using is fraught with problems. No matter how “good” its recommendations may be, they will be viewed as the product of a Liberal government-biased committee and will not bear the hallmark of impartial legitimacy that any electoral process must have.
Recently, there have been increasing cries for the Liberal government to hold a referendum on any new electoral system. On the CBC News website today, there is a report on a poll conducted by Insight West which found that nearly two thirds of Canadians polled considered that there should be a referendum on any new system of voting. But would this be a good way to decide upon such an issue?
On January 19, 2016, the Honourable Maryam Monsef, Minister of Democratic Institutions, announced the appointment of first members of the non-partisan panel that is charged with the task of coming up with qualified candidates for Senate vacancies. The panel, which has three federal representatives, two Ontario provincial representatives, two Quebec provincial representatives and two Manitoba provincial representatives, is supposed to come up with five qualified candidates for each Senate vacancy for those three provinces. The recommendations are not binding on the Prime Minister who ultimately submits his choices to the Governor General. The nine members of this initial panel are all eminently qualified. But there is criticism of the process. Some of the criticism has merit.
Last year, when Prime Minister Trudeau announced that he would press ahead with his plans for a non-partisan advisory panel to assist in choosing candidates for the Senate, BC’s Premier, Christy Clark, immediately slammed the proposal. She retorted that BC would not participate. On the same day as the Prime Minister’s announcement, she tweeted that the “Senate has never represented BC’s interests at the national level”. Later, she issued a statement: “[The proposed] changes do not address what’s been wrong with the Senate since the beginning. It has never been designed to represent British Columbians or our interests”. She has argued that BC is grossly under-represented, only getting 6 seats in the 105 seat Senate, and Mr. Trudeau’s changes would only serve to the Senate to think that it is somehow legitimate and that this would allow it to think that it could make decisions on behalf of the country. She stated that the Senate does not have that power and should not have it.
Premier Clark is both right and wrong. Furthermore, in my opinion, British Columbia is not the only party that should be seeking structural changes to the Senate. Specifically, I believe that the indigenous peoples of Canada should be included in any discussions involving revisions to the Senate.
Prime Minister Justin Trudeau and the new Liberal government face a unusual dilemma. They have an ambitious legislative agenda. They have a majority in the House of Commons. But they do not control the Upper House, the Senate. In that legislative chamber, the Conservative Party have 47 members. The Liberals cast their senators, now numbering 29, from their caucus. There are 7 independent senators. And 22 vacancies. Because the Liberal senators are no longer subject to party discipline, their votes cannot be controlled. One can imagine nevertheless that Liberal senators would be inclined to vote for the Liberal Party’s legislative agenda. But the Conservative Party Senators, however, have been strictly whipped, at least under the leadership of former Prime Minister Stephen Harper.
I do not think that anyone forecast a Liberal majority of the magnitude that swept the country last night. Sixty-eight and a half percent of eligible Canadian electors voted last night. Prime Minister-elect Justin Trudeau said that Canadians wanted “change – real change”. I think he is right. But what sort of change will that include and will it involve constitutional issues? The answer I think is “yes”. I will touch upon only four issues which require constitutional review or involves constitutional values.
Former Governor General Adrienne Clarkson wrote a compelling article in yesterday’s Globe & Mail. Her article, entitled “Minority governments: Time for the G-G to come out from behind the scenes” deals with the issue as to whether or not the decision-making process of the Governor General should be secretive or open.