Decision of Indigenous Groups to Boycott Council of the Federation Meeting Underscores the Need for Constitutional Reconciliation and Inclusion

The headline on today’s CBC News website says “Indigenous leaders to boycott Monday’s meeting with premiers”. The article outlines how three Indigenous groups, namely, the Assembly of First Nations, the Metis National Council and Tapirit Kanatami, have decided to withdraw from the Council of the Federation meeting where the leaders of the provinces and territories will be meeting because they (the indigenous leaders) are not being recognized as full and equal participants. In my opinion, this article demonstrates the pressing need for Canada’s reconciliation process to recognize the governments of Indigenous peoples in a more formal and constitutional manner.

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Required – A Redesigned Senate for Canada, its Regions and its Indigenous Peoples

Maryam Monsef

 

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.

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The new federal government and the Senate dilemma

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.

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The Governor General – will he be playing a bigger constitutional role after October 19th?

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.

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The PM puts a moratorium on Senate appointments

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

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

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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Abolition of the Senate? Simplistic but is it wise?

Senate

Yesterday and today, our highest court heard arguments on the reform and on the abolition of Canada’s Upper Chamber, the Senate. This all came about because of the Conservative government’s attempt to legislate amendments respecting how senators would be selected and respecting the imposition of term limits (as opposed to age limits). Arguing that Parliament had the power to legislate unilaterally in respect of itself and relying on the shaky premise that the “consultative” elections would not bind the Prime Minister in appointing new members to the Senate, the government proceeded some distance down that path before a number of provincial governments indicated their displeasure with the proposed process, not the least of which was Quebec. Indeed, the Quebec government referred the constitutionality of the bill to its Court of Appeal which, on October 24, 2013, rendered its reasons for judgment: the bill was unconstitutional. In order to carry out the sorts of amendments proposed by the federal government, the federal government will have to involve the provinces. See Renvoi sur un projet de loi federal relative au Senat, 2013 QCCA 1807.

Recent scandals involving individual senators’ expenses has drawn the normally obscure Chamber into the spotlight, and frankly, into disrepute. Shaken by the opposition to its attempts to reform the Senate and embarrassed by the spending habits of some of the relatively newly appointed Conservative senators, the federal government has indicated that, if it cannot proceed with its amendments, it wants to abolish the Senate. “The Senate must change or vanish” said Minister of State for Democratic Reform Pierre Poilievre, “the status quo is not acceptable.”

Since the likely result of this Senate Reference will an opinion that the federal government must obtain the support of 7 provinces having at least 50% of the population in order to reform the Senate, and assuming that at least that minimum requirement will be necessary for the abolition of the Senate, the federal government will be expected to have to do something.  Reform or abolish? Change or vanish? I fear that the temptation will be to simply abolish.

I think that reform will be hard. The reason why it will be hard is that the democratization of the Senate (in other words, the election of the Senators) will mean that the Senate would transition from being a place of “second sober thought” to one of democratic legitimacy. The senators who would have fought for their seats and who would therefore represent their respective provinces would not be willing to simply sit back and let the members of the House of Commons dominate the legislative process. While the basis of their democratic mandate might be different (senators would represent provinces: members of Parliament represent their constituency), in each case, they would have a democratic mandate and would expect (and be expected) to exercise their democratic clout.

If elected then, the distribution of Senate seats takes on new importance. Would it be it appropriate in today’s Canada and with an elected (and therefore effective) Senate, that Ontario and Quebec each get 24 Senate seats but British Columbia and Alberta each get 6? Would there be a logical rationale for the fact that the four Western provinces combined get 24 senate seats but the four Atlantic provinces get 30? Obviously, the current distribution of Senate seats is due to historical developments and the addition of provinces over time resulting in the present distribution. But any province such as British Columbia which is and has been historically underrepresented in the House of Commons and is even more underrepresented in the Senate would be hard pressed to support election of senators without a corresponding rationalization and redistribution of Senate seats. Failure to do so would mean that provinces such as Alberta and British Columbia would be forever subject to the historical decisions based on old and now flawed concepts of the confederation that gave the more populous provinces of Ontario and Quebec the status of separate “regions”. As an “elected” Senate became democratically “effective”, one could expect that the federal government would have to consider the regional interests of Ontario and Quebec first in order to obtain their nearly 50% support in the Upper House. Central Canadian senators would naturally support legislative proposals that would be good for their provinces but British Columbia and Alberta senators would be too few in number to merit consideration.

Any reform involving redistribution of the Senate seats will not be an easy task.  As we all know, many have tried, none have succeeded. Thus, the simple approach, the easy way out may be to simply abolish the Senate. In light of the current public distaste for the Senate, this might be easier to accomplish than reform.  Few provinces, even those who have substantial over-representation in Ottawa by reason of their numerous Senate seats, would have popular support for reform. But popular opinion  does not mean that abolition is the better route. I would argue for a renewed and creative approach to reform.

A federation without a bicameral central legislature is a rarity – and for good reason. In a country as big and as diverse as Canada, it is important to have a mechanism for the regional sensitization of legislative proposals. A properly functioning bicameral legislature will achieve this objective by having one house enact legislation on the basis of simply “majority rule”. The other house, however, will pass a legislative proposal on the basis of a majority of regions or provinces (or states, as the case may be).  This is, after all, the essence of a federal legislature.

Unfortunately, we have not had an effective and properly functioning Upper Chamber doing more than providing “sober second thought”. There has not been the sort of regional input into central legislative decision-making that would make federal legislation better, more inclusive and more in tune with regional issues. We have seen examples of this: Alberta should remember how the National Energy Policy was imposed by a government, a House of Commons and a Senate dominated by Central Canadian interests. I would wager that a Senate that was elected, effective and properly regionally distributed would have required a different sort of national energy policy than the one that was introduced in the early 1980’s.

Accordingly, if, as I suspect will be the case, the Supreme Court of Canada determines that the proposed amendments constitutionally require the participation of the provinces for both reform and for abolition (and for the latter, probably the participation and consent of all of the provinces), I would urge Canadians and the Canadian and provincial governments to roll up their sleeves and get down to determining a principled way of reforming the Senate so that it becomes a democratic and effective component of our federal Parliament and not the subject of derision because of its impotence and its irrelevance in the eyes of most citizens.

In the end, I agree with Minister Poilievre — in part. I agree that “the status quo is not acceptable”. I agree that the Senate must change. I disagree that it should simply vanish.  Simply because it would be really, really hard to reform does not justify abolition. I think we owe it to all Canadians to keep on trying until we get it right.