Category Archives: Parliamentary Law

Senate Reform in Canada – Going Boldly Where No Senate Has Gone Before?

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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”.

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The PM names a new Supreme Court of Canada justice – but ignores his own protocols

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Suzanne Cote

Photo of Future SCC Justice Suzanne Cote from Osler, Hoskin & Harcourt website

Prime Minister Harper announced late last week that his choice for replacing soon to retire Justice Louis LeBel was Suzanne Cote, a respected member of the Quebec bar and commercial litigator with the esteemed law firm of Osler, Hoskin & Harcourt. While his choice of judge cannot be faulted, the manner in which he is carrying out this nomination can be.

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David Suzuki and the plea for a constitutional right to a healthy environment

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Dr. David Suzuki, that famous Canadian scientist who has used the media to advance his arguments for the protection of the environment, is up to it again. As part of his recently concluded “Blue Dot Tour”, he has pressed for the amendment of the Canadian Charter of Rights and Freedoms to include a “right to a healthy environment” (Newfoundland & Labradaor, TheIndependent.Ca, September 24, 2014). He states that virtually all Canadians would support such an objective.

While I agree with Dr. Suzuki’s overall objectives, I think other types of constitutional reforms may be more effective in achieving the ultimate goal of a clean and healthy environment.

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Today’s vote in Scotland is a reminder for Canada – we have work to do

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Today, the people of Scotland are voting in a referendum to decide whether or not Scotland should be an independent country. Canadians have experienced this twice before – once in 1980 and another time in 1995. The parallels between the 1995 Quebec vote and today’s referendum are uncanny: in both cases, the “No” campaign was expected to win. In both cases, the “No” campaign was left to a less than inspiring leadership. In both cases, near the end of the referendum, there was a surge of popular support for the “Yes” campaign. In both cases, the leadership at the national level severely underestimated the potential for the “Yes” vote. And in both cases, there were last minute desperate rallies on the part of the “No” campaigners, with national prime ministers and national opposition leaders alike coming together to plead for the future of the greater country. Whether the 11th hour pleas will succeed in moving enough Scots over to the “No” side we do not know. We will find out tomorrow.

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Constitutional Expertise in Parliament – an Unused Resource?

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As of the date of this post, Canada’s Parliament boasts three sitting members who are all experts in constitutional law. I do not know if we have ever had such a bounty of constitutional know-how in the House of Commons. But what is interesting to me is that our elected chamber has available to it some of the most eminent constitutional scholars that the country can offer at a time when the government consistently enacts or seeks to enact unconstitutional legislation. Part of the problem may be that one of the three sits as members of the Official Opposition (the New Democratic Party) and the other two sit as members of the Third Party (the Liberal Party of Canada).

Regrettably, it would appear that Parliament increasingly fails to pull upon the background and experience of its members and instead prefers to inhabit partisan space. In my opinion, if our legislative bodies drew upon and respected the knowledge of their members, our democracy would be much healthier and more balanced than it is now. Imagine how different things might be if the constitutional opinions of these members were sought and debated in Parliament.

So here are the three members, in alphabetical order of their last names, with photos either from the Parliament of Canada’s website or from their respective party’s website and information taken from their individual sites. (If I have missed any other constitutional lawyers sitting in Parliament, I apologize in advance).

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What happens if the PM simply stops appointing Senators? What about the GG?

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Could Governor General David Johnston have to decide what to do if no senators are appointed?

It could come to this. As of today, the Senate has 11 vacancies. By the end of the year, there could be as many as 17. According to some reports, the Prime Minister is loath to appoint any new senators. What would happen if Prime Minister Harper, still stinging from the rebuke by the Supreme Court of Canada, simply chose to not appoint any more senators? Assuming that he was able to stay in government long enough, over time, the Senate as a functioning institution would cease to exist.

Could this de facto constitutional amendment, one committed by inaction rather than action, bring about the abolition of the Upper House? A fascinating piece authored by James Cudmore of CBC News, “Is Stephen Harper obliged to fill empty Senate seats?” examines this issue. Mr. Cudmore interviews political scientists, Emmett MacFarlane and Philippe Lagasse, and eminent constitutional lawyer, Peter Hogg. While Mr. Cudmore’s article does not purport to present a definitive response to the question posed by the article’s title, it is certainly thought provoking.

Professor Lagasse is recorded as postulating that, if by refusing to appoint so many senators, the Prime Minister effectively and unilaterally fundamentally restructures the architecture and operation of the Canadian Parliament, at some point, the Governor General would be driven to the conclusion that the Prime Minister was acting unconstitutionally and have grounds to dismiss him. Now that would be interesting….

I recommend heartily that you review Mr. Cudmore’s article. The Prime Minister would do well to consider the article as well. In an earlier post “Stop in the name of love (or the Constitution) – the Supremes Block the Government’s Plans for Senate Reform” (April 25, 2014) prepared after the Supreme Court rendered its decision in Reference re Senate Reform, 2014 SCC 32, I wrote in relation to the abolition of the Senate:

Insofar as the proposal to simply abolish the Senate on the basis of the general amending formula, the Court dismissed the Attorney General for Canada’s argument as again putting “form over substance”. The Court concluded {para. 110]:

The review of constitutional amendments by an upper house is an essential component of the Part V amending procedures. The Senate has a role to play in all of the Part V amending procedures, except for the unilateral provincial procedure. The process of constitutional amendment in a unicameral system would be qualitatively different from the current process. There would be one less player in the process, one less mechanism of review. It would be necessary to decide whether the amending procedure can function as currently drafted in a unicameral system, or whether it should be modified to provide for a new mechanism of review that occupies the role formerly played by the upper chamber. These issues relate to the functioning of the constitutional amendment formula and, as such, unanimous consent of Parliament and of all the provinces is required under s. 41(e) of the Constitution Act, 1982.

It is clear, in my view, that the Supreme Court of Canada views the continued participation of the Senate as an essential component of the Canadian constitutional framework and only a constitutional amendment pursuant to s. 41(e) (requiring unanimity of the provinces) could change that. It follows, therefore, that the continued existence of the Senate is essential to the proper constitutional functioning of our federation. I will write later about the importance of the concept of rule of law, and how it is important that that concept be fostered not only in the courts, but also in the legislatures, the executives and the citizenry of the country (and I must give credit to Simon Potter, former President of the Canadian Bar Association, who made this point at his speech at the Conference of the Constitutional Law and Human Rights Section of the CBA on June 27, 2014). I will say now, however, that, if the Prime Minister is seeking to abolish the Senate by a deliberate choice not to appoint senators, he would be acting contrary to the Constitution of Canada and he would be undermining the principle of rule of law. I trust that that is not the case but we should all remain vigilant in protecting that fundamental constitutional principle and in upholding our Constitution.

I remain

Constitutionally yours

Arthur Grant

“Stop! In the name of love (or the Constitution)” – The Supremes Block the Government’s Plans for Senate Reform

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Today, the Supreme Court of Canada denounced the federal government’s plans to reform the Senate by unilaterally imposing term limits for senators and by holding non-binding “consultative” elections for the selection of future senators. The Court also decried the proposal that, by use of the general amending formula, the Senate could be abolished. The decision, Reference re Senate Reform, 2014 SCC 32, was rendered by “the Court” without any one of the eight justices who heard the appeal identified as the author of the reasons for judgment. In making these pronouncements, the Court did no more than its job: it upheld the Constitution of the country and held the federal government (and provincial governments) to the letter, spirit and intent of the supreme law of the land. For that, we all owe the Court a debt of gratitude.

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The Supreme Court Rules on the Eligibility Requirements for its Three Members from Quebec – Back to the Drawing Board for the Prime Minister

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Another day and another defeat for the Government of Canada. This time, a six-to-one majority of the Court has ruled that the Prime Minister’s attempt to appoint Mr. Justice Marc Nadon, a supernumerary justice of the Federal Court of Appeal who, prior to his appointment to the Federal Court, had been an advocate of the Province of Quebec for more than 10 years, was not constitutional and his swearing in was void. Moreover, the Government’s attempt to amend the Supreme Court Act was found to be unconstitutional. Continue reading →

Don’t cry for me, Argentina… A Tale of Two Countries

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Peron_y_Eva_-_Acto_en_Plaza_de_Mayo_-17OCT1951[1]

Eva Peron – October 17, 1951 – Wikipedia

My wife and I have just returned from a trip to Argentina. It was a way for us to celebrate a milestone anniversary and we thought that we would choose somewhere in the world that would be different from the normal choices. Argentina sounded exotic and distant and so we booked our trip, not really knowing what to expect. Well, it has been an experience.

What has struck me is how many similarities there are between Canada and Argentina and yet, how many profound differences there are. Canada has about 35 million people. Argentina has about 40 million. Canada is a vast country – 4500 km wide. Argentina is the 6th largest country in the world, about 5000 km long. Canada has a northern identity (read Arctic). Argentina shoulders the Antarctic. Canada is blessed with natural resources. So is Argentina. Both are New World countries. Both were the subject of heavy European immigration. Both have strong indigenous populations. Both are federations. Argentina’s written constitution dates from 1853. Canada’s from 1867. With all these shared attributes, one might think that Argentina and Canada might be enjoying a similar fate in the world. But they clearly are not.

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The Supreme Court’s Exercise in Introspection

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Supreme Court This photo is from a file from the Wikimedia Commons.

On Wednesday, January 15, 2014, the Supreme Court of Canada is undertaking a rather interesting exercise. The Supreme Court justices will be hearing arguments from the Attorneys General of Canada, Quebec and Ontario as well as from certain intervenors in the Reference re Sections 5 and 6 of the Supreme Court Act which will determine whether Mr. Justice Marc Nadon has been properly appointed to sit amongst them.
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