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.”
In two separate decisions, the courts have made it clear that nothing in Carter v. Attorney General (Canada), 2015 SCC 5 requires that the person seeking medical assistance in dying be suffering from a terminal illness or condition. And yet the government persists in pursuing Bill C-14 with its requirement of “reasonable foreseeability” of death.
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.
I remain
Constitutionally yours
Arthur Grant
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.
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?
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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”.
Constitutionally Canadian 