June 28, 2006

Honourable Senators…

Numerous senators have already spoken on Bill S-4. The government members are advancing the argument that the proposed bill is an attempt to start reforming the Canadian Senate. Others disagreed, best summarized by Senator Merchant, and I quote “Bill S-4 was born in haste for political aims rather than for good governance”…end quote.

I share many of the concerns expressed by my colleagues, but today, I want to focus my remarks on the authority to approve the changes recommended in S-4.

Many previous federal governments considered changes to the terms for senators, but were advised that it would constitute a change in the method of selecting senators and, therefore, would be subject to the 7/50 rule in Section 42 of the Constitution Act, 1982. Governments were advised that since 1982, the Department of Justice has held the view that Section 42 would apply to any change in tenure to a fixed mandate. It has been argued in the past, and accepted by previous governments, that the scope of Section 44 is very narrow and would not cover a radical change in mandate which would change “the essential character of the Senate”. Even if such a change was not covered by Section 42, it would still fall under the general amending formula (Section 38), which is also the 7/50 rule.

I remind, Honourable Senators, that the change in Senate tenure in 1965, a reduction from life to age 75 was done through federal legislation, but that was before the adoption of an amending formula.

I am of the opinion that Bill S-4 requires a Constitutional amendment.

The Constitution of Canada is the fundamental principal according to which Canada is governed. It is important to remember that constitutional government exists only when all the rules are followed consistently. On the other hand, arbitrary government exists when rules and laws are altered only to suit the government’s own purpose.

Neither the Federal nor the Provincial Governments should approve or amend the Constitution simply to suit its own purpose.

It is well understood that the courts have the authority to interpret the Constitution, and to resolve conflicts between provincial and the federal government.

The courts, can provide an external check, a safeguard against excessive concentration of power in the hands of the Prime Minister.

The rule of law is the absence of arbitrary Government. Citizens of Canada are subject to the Constitution and so are the provincial and federal governments. I believe the courts are there to interpret the law and they are the Guardians of the Constitution.

Because they are appointed to age 75, judges can apply the law without fear or favour, for tenure allows them that security.

The desire to reform the Senate appears to be a priority of the current Government. Attempting to transform an appointed body to an elected chamber is a difficult task and does indeed affect the essential character of this Chamber.

Rather than this piecemeal approach, I would urge the Government to study examples of changes that have been attempted by other countries; for example, in the United Kingdom, discussions have been occurring for decades on proposed changes to the House of Lords.

In the 1997 general election, Prime Minister Tony Blair committed to a reform which would make the House of Lords “more democratic and representative” without changing its legislative powers.

The reforms undertaken in the United Kingdom since 1997 has involved in addition to the election commitment, a white paper, a Royal Commission, and a committee of the two Houses of Parliament.

In conclusion, Honourable Senators, the Prime Minister should determine if S-4 is constitutional by seeking a ruling from the Supreme Court before proceeding with this bill.

If the Prime Minister wants to change the Senate, he should withdrawal Bill S-4 and follow the example of Tony Blair and commission a white paper and a Royal Commission.

Canada deserves a better effort from the Government. Prime Minister Harper should go back to the drawing board and re-think what his Government and Canadians want from their Canadian Senate.

Thank you.