Well, after a scenic tour of the back hallways of Wellington Building, I finally managed to find Room 214, mostly by taking the advice given to Alice in Through The Looking Glass of walking in precisely the opposite direction from that which logic and common sense would dictate. So here I am, at a meeting of the Legislative Committee on C-20, which is studying the government’s bill on the election of senators, which is about to hear from two constitutional experts: John D. Whyte, and University of Ottawa law professor Errol Mendes, who is sitting quietly at the table.
Although if you look closely, you can see that he is twitching with anticipation, which isn’t surprising, since he’s about to excoriate the Prime Minister’s plan, which, he says, is an underhanded plot to circumvent the existing constitutional amending formula, reform the Senate by stealth, and bring about the end of parliamentary democracy itself.
Wait, was that a spoiler? Because that’s his position, which should make for an exciting afternoon.
I apologize for not transcribing Mendes’ opening statement, but I’m actually kind of riveted. Basically, he believes that the PM is attempting to undermine the independence of the Senate, and Parliament itself, to “strangle one of the Houses of Parliament,” which violates the most fundamental principles of Canadian democracy. I can’t wait for the Q&A.
Mendes’ co-witness, John D. Whyte, is a little less apocalyptic in his predictions, but he’s certainly no fan of the legislation; there are many points, he says, where it would violate the law.
Like Mendes, he sees this as an attempt to “reconstitute” Parliament without going through the existing amendment process. The fact that doing so is “cumbersome and inconvenient” is not a bug, but a feature, woven into the very fabric of the Constitution for its own protection—and ours.
Bill C-20, he says, is simply the same old appointed Senate, since the decision still rests in the hands of the Prime Minister, and he or she would not be bound by the results of the Senate elections.
He also has concerns about Quebec, and regional representation in general—which Mendes most emphatically shares—as well as the logistics of holding province-by-province votes, and—pretty much everything.
Eventually, the chair—Albina Guarnieri, a Liberal—asks Whyte politely, but firmly—to wrap it up, and then it’s onto the third witness of the day, Charles Cote, who is appearing via teleconference from the University of Laval.
And it’s 0 for 3 as far as professorial support for the PM’s proposal; Cote points out that the unelected nature of the Senate is a fundamental aspect of the institution, and he believes that any proposal dealing with the selection of senators would fall under the Constitution, and not the aegis of Parliament, no matter how much the PM might want it to be otherwise.
Looking around the committee room, I see lots of familiar faces from my other committees—especially Procedure and House Affairs, which seems to have supplied half the members to this particular legislative committee. Then again, they do have more free time on their hands than those with the misfortune of sitting on functioning committees.
Question time! I love questions. They sometimes lead to answers, and that’s always exciting.
Brian Murphy kicks off for the Liberals, and challenges the profs to explain how this bill could violate the amending process if it doesn’t actually change the selection process, since the decision would ultimately fall to the PM.
That alone is reason to reject the bill, says Mendes. What would happen if the PM refused to appoint a candidate who was duly “elected” by his province? It’s a recipe for constitutional chaos, he warns.
Characteristically, Whyte is a little more measured in his response, but he does acknowledge that it could come close to a constitutional crisis, like Australia.
Cote also brings up the Australian experience, and he thinks that Section 41 goes far beyond just the Governor General’s power to summon a Senate; there is a context to the provision, he says, and the founding fathers intended to “do more,” not take away from parliament’s authority.
Oh, the Bloc. It’s been quite a week for the Bloc. Yesterday, they were defending Elections Canada as the guardian of our democracy, and today, Pierre Paquette is doing legislative due diligence to protect Parliament from unconstitutional tweakery. He and Cote are having a lively debate on precedent, and the separation of powers, and it’s all so very civilized.
Mendes, incidentally, agrees with Cote that this is unprecedented, as far as the separation of powers. There was the imposition of age limits, but that wsa with the consent of the Senate, he notes. He doesn’t bring up the famous Black Rod Affair, which is too bad, since it’s a great story. Remind me later and I’ll regale you with the details.
Whyte is getting testy; he points out that he opposes this bill because it’s illegal. As in, against the law. Does no one read Supreme Court decisions anymore, he wonders. These are rules of law—not voluntary guidelines.
So, what should the committee do with this bill, Paquette wonders. Kill it, suggests Mendes. He doesn’t add “with fire,” but you know he was thinking it.
And now, it’s the government’s turn to question the witnesses. First up, Rob Moore—parliamentary secretary for Justice—who agrees that there is a difference of opinion on the bill, as far as its constitutional legality. But other than that, he seems to side with “eminent legal scholar” Peter Hogg – who appeared last month, and by all indications, was far more enthusiastic about the legislation. Are they—the three law profs—saying that Hogg got it wrong?
Yes, actually. Not only wrong, but, as Mendes points out, he’s not yet on the Supreme Court, which means that the committee shouldn’t just take his word for it, as far as the legality of the bill, just as they shouldn’t simply take his or Whyte’s or Cote’s word that it isn’t. Legal, that is.
And now Whyte is turning down the temperature again; he feels just as strongly as Mendes—he actually says that he believes Hogg is wrong—but he’s far more—well, professorial in the classic sense—in his mannerism. It’s actually a good pairing; not sure if the joint appearance was accidental or deliberate, but it works well.
Predictably, Rob Moore busts out a quote from a Liberal—Scott Brison, who isn’t even here at the moment—on the risk of gridlock, and how it may not always be a bad thing. It may be an ‘enhancement’ of the democratic process. Right? Well, ish, according to Mendes, provided it doesn’t run roughshod over regional representation.
Whyte raises the terrifying spectre of two Houses of Parliament stuck in gridlock.
Hah! Albina Guarnieri just referred to John Maloney as “Mulroney”— apparently, all that talk about Charlottetown just put him in mind. He asks if the bill should simply be scrapped, and once again, Mendes says it should. It’s simply not constitutional.
What about representation other than regional, he wonders—women, disabled persons, minorities—how do you ensure that these groups are represented as well? It all comes down to consultations with the provinces, according to Whyte. Mendes concurs, and recalls that the Charlottetown Accord included a proposal to do just that.
Scott Reid—another old friend from PROC—starts off with a bang by accusing Mendes of “constitutional nonsense,” and proposing impossible, nightmarish hypothetical scenarios, where rule of law would be thrown out, and—TWEET! The chair just called a timeout, and scolds Reid for his— rather confrontational style of questioning. Witnesses aren’t here to be abused, the chair reminds him, which prompts grumbling from Reid.
I want him to keep abusing me, says Mendes, cheerfully—it’s a sign that he’s lost the argument, and has nothing else to say.
And … Reid sort of proves his point by rambling on for the next four minutes, until he runs out of time.
In response, Mendes reiterates his argument, and chides Reid, who, he reminds the MP, isn’t the Supreme Court. Other than that, he won’t sink to his—Reid’s—level of abuse.
Whyte interjects: Reid mentioned two cases, he points out, and raises an “interesting question” about the secession reference. He thinks Reid is wrong but it’s still a fair question.
Joe Preston, last seen submitting his resignation as chair of Procedure and House Affairs, is nodding enthusiastically. Maybe he’s thinking back to those halcyon days when the committee held honest to goodness meetings. Which, of course, were promptly hijacked by government-backed filibusters/the tyrannical majority, depending on your perspective.
Man, wouldn’t it be awesome to make Senate committees more like that?
Quebec-centric questions, of which there are practically a whole other committees’ worth, what with its particular requirements, but really, as Whyte notes, it is far more fundamental than that.
“If we deal with the Senate, we have to deal with Quebec,” he notes, “and if we deal with Quebec, we have to deal with 1982.” If the reaction to Jean-Pierre Blackburn’s musings on the possibility of reopening Pandora’s Constitution is anything to go by, that’s pretty much a dealbreaker, if he’s right.
The Conservatives, it seems, are out of questions, but Hedy Fry has a few more; I have to admit that she’s losing me, as far as her overall point. Oh wait, there it is: She’d like to know what the professors would propose to ask the Supreme Court. Mendes’ answer is predictable—can the government do this without going through the existing amending process. Cote is curious about constitutionality, and Whyte wonders about the provision for provincial consultations.
Okay, I guess the Tories aren’t out of questions; not Scott Reid, anyway. He’s back on the attack, dogging Mendes with more quibbles on his hypotheticals, particularly with regard to the role of the Prime Minister, who is but a “legal construct.” He better not say that too loudly in Langevin Block. Mendes sticks to his guns, and maintains that this is a question of legality; the repatriation case, he notes, is still relevant, and the very office of the PM is a “convention,” and not specified in the constitution. Seriously, does the current holder of that title know that? Because I don’t think it’s going to go over well at all if he doesn’t.
Anyway, where there is a conflict between prerogative power, and the amending process, the latter wins out. It has to give way. That’s just the way it is. No end runs. No sneaking around the rules.
“Have you read this case, Professor Mendes?” Scott Reid snarls. “Do you want to test me?” Mendes shoots back.
Oh, Scott Reid. What is your obsession with picking fights with experts in their respective fields? First Marc Bosc, now Mendes.
More Hogg-wrangling; Brian Murphy reads out a few more quotes, and asks whether they—the current witnesses—agree, and at that point, I got distracted for a second and missed the specifics; basically, he, too, is curious about where the line is drawn between black letter law, convention, and the interpretation of the court.
Whyte notes that when you create a practice through legislation to constrain and govern a clear constitutional prerogative, you are changing that power. He then goes off on an oddly wistful tangent about the burdensome nature of laws.
Mendes disagrees, unsurprisingly, and says that he doesn’t think you can create a convention by breaking a provision, and that, as it turns out, is the last word. Which will probably drive Scott Reid crazy.