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.
Yesterday, the Liberal government announced that they were moving forward with their plan to create a five member independent advisory panel to provide recommendations for future appointments to the Senate. As I understand it, the advisory panel will be comprised of three “federal” members and two ad hoc members from the province or territory with one or more vacancies to fill. The advisory panel will consider potential candidates and provide non-binding recommendations to the Prime Minister who in turn will recommend appointments to the Governor General. The panel will be charged with ensuring that the potential candidates are representative of men and women and the diversity of Canada, and that the candidates understand and appreciate the role that the Senate is to play in Canada’s Parliament. Within hours, British Columbia’s premier Christy Clark already indicated that these reforms are insufficient and that British Columbia will not participate, saying that the Senate has never represented British Columbia adequately.
First, do I think that these reforms are “constitutional”? Yes, I do. I am of the opinion that the reforms do not constitute amendments to the essential character and constitutional role of the Senate, namely, that of an appointed legislative body of second sober thought. Indeed, these proposed reforms taken on their own will actually reinforce and support the original role intended for the Senate by the drafters of the original British North America Act of 1867 (now named the Constitution Act, 1867). The process of removing the partisan qualities of Senate appointments will help to bring the Senate back to its original role of a legislative chamber of second sober thought, providing careful consideration of proposed legislative instruments. It would act as a means of ensuring proper crafting of bills. It could, if necessary (and this should only ever happen rarely and exceptionally), reject products that constitute partisan excesses of the House of Commons. These are all roles that will be enhanced by the proposed reforms and have been expressly acknowledged by the Supreme Court of Canada as being the proper constitutional roles for the Senate. In my opinion, no formal constitutional amendment is needed for these reforms.
Second, do I think that these reforms are sufficient? No, I do not. As a British Columbian, I understand Premier Christy Clark’s reaction to the reforms. If this is all that is planned for the Senate, then British Columbia will continue to be the most under-represented province at the federal level. Historic circumstances give provinces such as Nova Scotia and New Brunswick 1o senators each, and Ontario and Quebec 24 senators each, yet British Columbia arguably a region unto its own, 6 senators. One of the other roles of the Senate is to reflect Canada’s regional diversity – and I would add the word “adequately”. For these reforms, the new federal government must engage in the much feared federal/provincial/territorial (and I would add “/First Nation”) constitutional negotiations. Only by committing to these sorts of discussions will the other reforms as currently proposed by the Liberals ultimately be legitimized and supported by the constitutional participants to our federation. If such negotiations were to be proposed by the federal government, the Premier of British Columbia would be hard pressed not to participate in the advisory panel reforms announced yesterday.
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.
On October 19, 2015, Canada goes to the polls. The hurly burly of the Canadian version of democracy has been on display since early August when Prime Minister Stephen Harper asked the Governor General to dissolve Parliament and to call this election. What many of us do not appreciate is that this spectacle is probably one of the best examples of our constitution at work.
It is almost exactly one month to Election Day in Canada and the party leaders have been making all sorts of statements with a view to garnering sufficient votes to form the next government. Some of their statements, however, have had constitutional implications. In today’s Globe & Mail, Professor Eric Adams of University of Alberta has presented a quick summary of the leaders’ misconceptions as to who gets to form a government in the event there is no one party with a majority in the House of Commons. His article, “Minority Governments: The constitutional rules of the game” outlines how Conservative leader Stephen Harper, NDP leader Tom Mulcair and Liberal leader Justin Trudeau all get it wrong when it comes time to articulating the rules for formation of government.
On July 27, 2015, Prime Minister Stephen Harper named Mr. Justice Russell Brown of the Alberta Court of Appeal to the Supreme Court of Canada. Justice Brown has been a judge for two and a half years. I am not going to comment on whether Justice Brown is or is not a good appointment. His track record as a judge is too short to be able to honestly answer that question. Only time will tell. But I am going to comment on the process, or more properly speaking – the lack of process, that the Prime Minister is following.
This week, Prime Minister Stephen Harper announced that there would be no further Senate appointments on his watch – either the Senate will be abolished or there will have to be substantial reforms to the Senate before he alters this position. The Prime Minister says that it is up to the provinces to come up with a solution. This is apparently part of his election platform. The question has to be posed: is the Prime Minister acting unconstitutionally?
By a 5 to 4 margin, in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (referred to as the Long Gun Registry case in this post), the Supreme Court of Canada ruled on March 27, 2015 that the Quebec government had no right to insist that, before destroying all data in the now defunct federal long gun registry, the federal government hand over to it the data relating to Quebec resident long gun owners. Two and a half weeks later, by a 6 to 3 margin, in R. v. Nur, 2015 SCC 15, the Court held that the mandatory minimum sentence for possessing prohibited firearms was contrary to s. 12 of the Charter and was not justified under s. 1. What is of interest, besides the result in these two cases, is how the Court divided and the basis for its division.
This weekend, I had the pleasure of attending a conference at the Centre for Constitutional Studies at the University of Alberta in Edmonton, Alberta. The conference was entitled “Time for Boldness on Senate Reform”. Its opening speaker was the Right Honourable Kim Campbell, former prime minister of Canada. She delivered a thoughtful review of her experience both as a minister under Brian Mulroney’s government and as prime minister and her recollections about how the Senate had acted in response to both the Progressive Conservative’s government’s proposal for free trade with the United States and to the Mulroney government’s later proposal for the Goods and Services Tax (“GST”). The conference ended with the eminent professor and scholar Roger Gibbins reviewing the results of the various speakers and summarizing his experience at the conference. Professor Gibbins asked himself two questions. First, he asked whether the conference participants had been successful in living up to the conference’s : were they “bold” in their suggestions for Senate reform. He answered that question with a “No”. Then, he asked whether he learned whether Canada had to be bold in reforming the Senate. To that, he responded “Yes”.