Speech on Amending the Constitution as it Relates to the Senate (Motion to Rules Committee)
Hon. Daniel Hays (Leader of the Opposition), pursuant to notice of November 22, 2006, moved:
That the Standing Senate Committee on Rules, Procedure and the Rights of Parliament be authorized to examine and report upon the current provisions of the Constitution Act, 1867 that relate to the Senate and the need and means to modernize such provisions, either by means of the appropriate amending formula in the Act and/or through modifications to the Rules of the Senate. In particular, the Committee shall be authorized to examine:
(a) section 23 of the Constitution Act, 1867, with respect to the qualifications of a Senator;
(b) sections 26 and 27 of the Constitution Act, 1867, with respect to the addition of Senators in certain cases and the reduction of the Senate to its normal number;
(c) section 29 (1) of the Constitution Act, 1867, with respect to tenure in the Senate;
(d) section 31 of the Constitution Act, 1867, with respect to the disqualification of Senators;
(e) section 34 of the Constitution Act, 1867, with respect to the appointment of the Speaker of the Senate;
(f) section 36 of the Constitution Act, 1867, with respect to voting in the Senate;
(g) any other related section of the Constitution Act, 1867; and
That the Committee submit its final report no later than June 21, 2007.
He said: Honourable senators, on November 22, 2006, I gave notice that I intended to propose a motion to authorize the Standing Senate Committee on Rules, Procedure and the Rights of Parliament to examine certain amendments that could be made to the Constitution Act, 1867, by Parliament exclusively.
My purpose today is to explain what lies behind that motion. My colleagues will recall that, in June, the Special Senate Committee on Senate Reform was given the mandate to study Senate reform in general and to examine the subject-matter of Bill S-4 and the Murray-Austin motion in particular.
Although we spent the majority of our time specifically looking into the matters that had been referred to us, we were constantly drawn into a discussion pertaining to broader parliamentary reform and to the role of a modern Senate within our system. We were reminded that our Parliament could be modernized or made more efficient without getting into federal-provincial negotiations, which is to say through the amending formula provided for in section 44 of the Constitution Act, 1982.
It has always been our duty in this chamber to consider, propose and improve legislation, and we now have a unique opportunity to make a valuable contribution to matters before us in the context of Bill S-4 and the Murray-Austin motion. These questions will be decided by a free vote and our deliberations, I hope, will provide an example of the Senate at its best, working to improve this institution and ensure Canada's interests are well served.
With this in mind, and towards that end, I wish to offer suggestions about provisions of the Constitution that I believe could be usefully examined by our committee at this time. As indicated in the motion, I am referring specifically to sections 23, 26, 27, 29(1), 31, 34, 36, and related sections of the Constitution Act, 1867.
I note, in passing, that our committee could also examine the possibility of formulating one or more draft bills with a view to modernizing a number of the sections in the Constitution affecting the Senate, and even preparing a question that could, if needed, be submitted to the Supreme Court.
I will address the sections mentioned in numerical order as they appear in the Constitution and in the motion, and not in order of their importance. It would be difficult to rank them in order of importance, and I thought it simpler to do them numerically.
To begin with, the Senate Rules Committee should examine section 23 of the Constitution Act, 1867, which deals with the qualification of senators. First, the minimum age requirement in subsection 23(1), which is now 30, could be amended and brought more in line with section 3 of the Canada Elections Act. This would mean that membership in our chamber would be open to Canadian citizens of voting age; however, 20 or 25 could be the age chosen if 18 is not felt to be acceptable.
Second, our Rules Committee should look at subsection 23(2), which specifies that senators must be natural-born subjects of the Queen or persons naturalized by the Parliament of Canada after the Union. The wording is archaic, and if we were to follow the model of the Canada Elections Act, we could simply say a senator must be a Canadian citizen.
As well, the $4,000 property qualification for senators, as stipulated in sections 23(3) and 23(4), is something our Rules Committee could examine carefully. In my view, it is vestigial. The language used is archaic and this qualification no longer serves its original purpose. The committee should consider whether these subsections could be changed to allow the $4,000 property qualification to be deleted.
Moreover, honourable senators, subsection 23(6) contains provisions for Quebec that are quite distinctive, since they require that senators live in or own $4,000 worth of property in one of the province's 24 senatorial districts. As it stands, this requirement is somewhat archaic, since it reflects the electoral districts held by Canada East in the Legislative Council of Canada prior to Confederation. As well, it includes only the southern part of the province while completely ignoring the north. It might be removed or changed by virtue of the section 43 amending formula, which pertains to provisions relating to some but not all provinces, and it would only require resolution from Parliament and the National Assembly of Quebec.
Of course, any such change could only proceed at the request of Quebec and with its approval.
Another area we should look at modernizing is section 26, which allows the Queen to appoint four or eight extra senators to resolve deadlocks between the House of Commons and the Senate. This provision has only been used once, to break the deadlock over the GST in 1992, and it proved controversial. As well, it excludes Newfoundland and the territories from the process. It could be replaced by an entirely new provision dealing more constructively with deadlocks between the two chambers when they arise.
A new practice could involve greater use of conferences, joint sessions, extraordinary majorities or special voting procedures in the Senate. In fact, conference committees have provided a useful means of managing deadlock in other bicameral institutions, particularly those where the legislative power of both chambers is more or less equal. I am thinking particularly of the United States Congress, where most conference committees do reach agreement. Those committees have been called the third house of Congress and are seen as low-cost negotiations to achieve consensus on important legislation.
As we know, the Canadian Constitution does not provide an effective mechanism to break legislative deadlock. In the end, the House of Commons or the Senate, if they insist on amendments and refuse a request for a free conference — a procedure which is provided for in section 78 of the Rules of the Senate — the other chamber is left with the only option of rejecting the measure outright.
This possibility can be more fully discussed in committee. For instance, an amendment to the Constitution could be suggested to provide that if there is a disagreement on a public bill whereby either the Senate or the House insists on its amendments, a conference committee would be established and it would prepare a report to be either approved or rejected by both Houses.
As for section 27, which provides for the reduction of Senate seats following the appointment by the Queen of four or eight senators to break a deadlock between both Houses, it could be deleted if section 26 is amended as suggested.
Honourable senators, I believe it is also important for the Rules Committee to examine the provisions pertaining to the reasons for disqualifying senators, namely, section 31 of the Constitution Act, 1867. This section provides a list of reasons for which the place of a senator should be vacated or under which a senator should be removed from his or her seat. Its language is archaic, and I am sure that modernizing it would be appropriate at this time.
For example, we need better guidelines with respect to subsection 31, the vacating of a senator's seat if he or she fails to appear for two consecutive sessions. Section 33 of the Constitution Act, 1867 states that any question respecting the disqualification of a senator or vacancy in the Senate shall be heard and determined by the Senate. The Rules Committee might recommend that the Senate determine, from time to time, the attendance requirements necessary for a senator to retain his or her seat.
To emphasize the importance of fairness, an extraordinary majority of the Senate could be required to implement or change such a rule. I note, however, that this approach would require that attention be paid to section 36 of the Constitution, which specifies that questions arising in the Senate shall be decided by a majority vote.
Let me now turn to subsection 31(2), which, as I read it, essentially states that a senator's seat should be vacated if the senator becomes a dual citizen. It seems clear to me that if dual citizenship is allowed under the laws of Canada and does not interfere with membership in the other place, it should not disqualify someone from remaining a senator.
As for section 31(3), I am certain that most of you will agree that senators who become bankrupt should vacate their seats. This subsection also refers to a senator who "applies for the benefit of any law relating to insolvent debtors," and it is something our committee should look at carefully. Indeed, as W.H. McConnell noted in his Commentary on the British North America Act, this stipulation could have applied, for example, to a hypothetical senator from the Prairies in the 1930s seeking creditor relief under the Farmers' Creditors Arrangement Act. In any event, I am sure that the wording of this section can be modernized and thereby improved.
Another disqualification for senators specified in section 31(4) of the act concerns a senator "attainted of Treason or convicted of Felony or of any infamous Crime."
This section is due for review.