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Bill S-16, to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate)

 

Constitution Act, 1867
Parliament of Canada Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Oliver, seconded by the Honourable Senator Stratton, for the second reading of Bill S-16, to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).—(Honourable Senator Joyal, P.C.).

Hon. Serge Joyal: Honourable senators, I wish to speak this afternoon on Bill S-16, which is a very important bill introduced by our honourable friend Senator Oliver.

Bill S-16, a copy of which senators will certainly have in their bookbinders, attempts to do two things. It would change the appointment process of our Speaker from the current system, which is by appointment through Governor in Council, to a selection process that would be similar to the one followed in the House of Commons — that is, a secret ballot among senators to choose the Speaker.

Bill S-16 would also restrict the voting rights of the Speaker to breaking a tie vote. That means that the only time the Speaker could vote would be in this rare scenario. Presently, our Speaker does break tie votes because he votes on every question.

This bill is very important, honourable senators, because the status of our Speaker is rooted in one of the five principles of our institution. Our institution was endowed by the Fathers of Confederation with five institutional characteristics.

The first characteristic is independence. Our house was intended to be fully independent from the other place and, of course, from the executive. This is very clear in the Confederation debates. Once a senator is appointed, he or she does not face re-election, and they are appointed up to age 75. Governments may come and go, but we remain at least until age 75. In the other place, each electoral cycle brings a new wave of members. In fact, statistics show that every eight or nine years, two-thirds of the members in the other place are replaced. The statistical data is available in the book that we released last May. This first institutional characteristic of the Senate, independence, has implications for the status of our Speaker, and I will come back to this point later.

The second characteristic of this chamber is that of a long-term perspective. Senators bring a long-term perspective to the study and debate of legislation. The fact that our mandate is not tied to an electoral cycle of three or four years ensures that Parliament has a long-term view on all federal legislation.

The third institutional characteristic is continuity. Senators are the institutional memory of Parliament, which I think is obvious in much of the legislation that we pass here because we remember how we dealt with an issue 5, 10 or maybe even 20 years previously. This is very important, especially when dealing with such fundamental questions as minority rights.

The fourth characteristic of the Senate is the professional and life experience of its members. The Constitution provides that senators must be at least 30 years old; and convention requires that we be accomplished and reputable citizens; that we have life experience or professional experience commending us to this chamber.

The fifth and final characteristic is our representative role. We are appointed on a regional basis.

I would like to underscore to honourable senators today why the Speaker exercises a very important role in our institution. The Speaker represents our institution. He is in some ways the embodiment of our institution. He is our representative, for instance, when there is a legal proceeding affecting the rights and privileges of the Senate.

All honourable senators know that the Senate is currently reviewing an issue that might, at some point, require our Speaker to defend the rights of this chamber before the Supreme Court of Canada, in the same way that the Speaker of the Nova Scotia legislature did in the 1993 landmark Donahoe decision of the Supreme Court. So the Speaker is very important because he is the embodiment of our legislative chamber.

All honourable senators will remember that our legislative chamber is equal to the other place. This must be clearly understood. On June 5 earlier this year during the debate on Bill C-39, I rose in this chamber, as did Senator Kinsella, to draw the attention of honourable senators to the fact that the bill treated our Speaker differently than it treated the Speaker of the other place. It was an affront to the principle of equality between our two chambers. However, that is not what is at stake today.

What is at stake today is the status of our Speaker within this chamber. It is very important that we examine ourselves on this issue. Our Speaker is appointed through the Governor General in Council. That is what the Constitution says. Section 34 of the Constitution Act, 1867 states the following:

The Governor General may from Time to Time, by Instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his Stead.

In other words, it is the Governor General in Council. The Governor General in Council, as we understand it, is the government of the day through the Prime Minister, who advises the Governor General on the choice of Speaker. The government of the day can decide to remove the Speaker at any time. It is not our prerogative; it is up to the government of the day. At least that is what the Constitution Act, 1867 states at section 34.

The bill proposed to us by Senator Oliver is very attractive. It is attractive because it proposes to select our Speaker in the same way as the Speaker in the other place is chosen. However, when we look carefully into our Constitution, there are many constitutional hurdles involved which Senator Oliver's proposal must pass. Senator Oliver's proposal assumes that section 34 of the Constitution Act, 1867 could be amended on the basis of section 44 of the Constitution Act, 1982, which allows Parliament to amend the Constitution without provincial approval, in purely federal matters. It is on that basis that Senator Oliver proposes to amend the appointment provision for our Speaker. Section 44 of the Constitution Act, 1982 says quite clearly that Parliament can amend its own Constitution.

Senator Oliver says that, since we have the capacity to amend our own Constitution as a federal Parliament where the powers of the Senate or the powers of the House of Commons are involved and because the Speaker is part of that, Parliament alone can amend this part of the Constitution.

As attractive as that is, honourable senators, I find that to be a fast reading of section 34. Section 34 refers to the Governor General in Council. The Governor General in Council is the Governor General, under the advice of the cabinet, which is the council of the Governor General, the Prime Minister and his ministers.

When we look further into the Constitution Act of 1982, paragraph 41(a), we see that, in order to amend the office of the Governor General, we need the consent of both Houses of Parliament, and, honourable senators, the 10 concurring provinces. It is unanimity. Paragraph 41(a) clearly mentions "the office of the Governor General." What is the office of the Governor General? That is key to understanding this issue. It is not the physical premises with the furniture. That is not what we mean by the word "office." Here, "office" means the constitutional responsibility that is vested in the person of the Governor General.

In other words, if we were to change the powers of the Governor General under the Constitution, such as her power to appoint our Speaker, we would have to go through the heaviest amending formula of the Constitution, and my colleague Senator Beaudoin would concur with me that it involves the unanimity rule. As one might say, this will not be done tomorrow.

There is another problem in relation to the bill. If we are to amend the power of the Governor General in relation to the appointment of our Speaker, it might require Royal Consent because we are affecting the Governor in Council. This bill is a private member's bill. It does not include any Royal Consent. We all know what is involved in Royal Consent; it would have to be signified to us at a point in time before we vote on third reading. This is not something that should prevent us from studying the proposal; however, the proposal could be sent to the Rules Committee or the Legal and Constitutional Affairs Committee. We could hear witnesses, reflect and debate, and only at the last step of the bill would we need Royal Consent. That would not be a point of contention among us. There are many rulings of our Honourable Speaker on this issue.

Could we change the provision of the Constitution by which the Speaker is selected?

Senator Prud'homme: Yes.

Senator Joyal: Senator Austin has an original proposal. What did Senator Austin say? Senator Austin said, "Maybe we should pass a resolution."

Senator Prud'homme: Exactly.

Senator Joyal: We should pass a resolution requesting that the Governor General in Council appoint a Speaker chosen by senators through a secret ballot. This approach would avoid the constitutional requirement of provincial unanimity that we would likely face by attempting to alter the power of the Governor General.

I thought twice, honourable senators, about the proposal of Senator Austin. I feel there is also a constitutional problem with this suggestion. Section 34 states that it is the Governor General in Council who appoints the Speaker. Who is the Governor in Council? Who gives advice to the Governor in Council? It is very clear: It is the Prime Minister through cabinet. The Constitution provides, by convention, that the only authority competent to advise the Governor General is the Prime Minister and his cabinet. We cannot substitute the advice of the Prime Minister with the advice of senators. Our Constitution does not provide for that.

In other words, if we were to adopt the proposal of Senator Austin, we would be altering a constitutional convention that is binding and that has implications on many other sections of our Constitution involving the powers of the Governor in Council to appoint judges, for example. There is no substitute for this essential conventional power exercised exclusively by members of the Privy Council. One must be a Privy Councillor to give advice to the Governor General when it is clearly provided in the Constitution that the responsibility comes from the Governor in Council. We sit as senators; we do not sit as Privy Councillors. Some of us may be or might have been Privy Councillors, but the Senate is not the house of the Privy Council. We are not all in the cabinet, in other words.

This is an issue that we must address fundamentally if we are to change the appointment process of our Speaker. Our Constitution must be taken as a logical framework. When our Speaker is appointed by the Governor in Council, the Speaker does not have the power to break a tie vote in our chamber. That is what the Constitution provides and that is what our rules provide. Our rules provide that if the Speaker wants to vote, he must vote first. He is equal to any one of us. He has one vote.

In the other place, the Speaker does not vote, except in the case of a tie. Honourable senators will remember that that happened two weeks ago. Many of us saw it on television. It is a very rare occurrence in the other place.

In other words, honourable senators, our Speaker, even though he is appointed by the government of the day, does not have any additional voting power. His vote is as decisive as that of any other senator.

The Hon. the Speaker: Senator Joyal, I truly regret to advise that your time has expired.

Senator Joyal: I would seek further time.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Joyal: I thank honourable senators for their indulgence.

Another aspect of our chamber that is different from the other place relates to the power of our Speaker to issue rulings. That is fundamentally different from the powers enjoyed by the Speaker of the other place. In the other place, a decision of the Speaker cannot be appealed. Once he or she has ruled, that is the last word. Our rules provide that, under rule 18(4), the decision of the Speaker can be appealed. In other words, because our Speaker is an appointee of the government of the day, two safeguards exist to maintain our capacity to remain master of our own rules. First, the Speaker votes before us. Second, his or her decisions are appealable. In other words, the Senate can reverse them.

Before we change the status of our Speaker, honourable senators, we must understand the architecture of our institution insofar as the Speaker is concerned. These issues were well thought out and well canvassed by those who were here before us. We are not the first to consider them.

[Translation]

The status of our Speaker was determined over 137 years ago. Why? Because, before Confederation, our Speaker was elected by the legislative councillors.

[English]

I wish to remind honourable senators that, before Confederation, the Speaker of the previous legislative council — our ancestor — was elected by the legislative councillors. I wish to quote Bourinot, pages 38-39, in the 1892 edition:

The Speaker was appointed by the Crown from the Council until 1862, when he was elected by members from among their number. The first election took place on March 20, 1862, when Sir Allan McNab was chosen Speaker.

Why was he elected among legislative councillors in 1862? The chief reason is that, back in the day, the majority of the legislative councillors were themselves elected. One can readily see the logic in this system. When a legislative body is elected, it has the right to elect its speaker. When a legislative body is appointed, so, too, is its Speaker. As I said before, the Speaker is the embodiment of the chamber.

The rationale is there. We might not agree with it; we might want to change the system, but we must operate within it. I believe that Senator Oliver has done us all a service in bringing this issue to our attention. However, I suggest to honourable senators that we should refer Senator Oliver's bill to the Legal and Constitutional Affairs Committee or to the Rules Committee to canvass all those aspects, all these questions I have raised, because, as I suggested to honourable senators, we are dealing with fundamental constitutional issues, very important institutional issues. If we are to support such an important change to our institution, we must, as our ancestor Sir John A. Macdonald said, devote sober second thought to this debate.

Honourable senators, this is a very serious issue. While it may seem to be straightforward at first glance, it is not simple. When we scratch some of the sections of our Constitution, we find more and more problems. If we have a concern, we should do the right thing.

I thank Honourable Senator Oliver. I am indebted to him for having given us a chance to reflect upon this matter, but I hope that we will be able to devote the time and study required to properly assess all the points raised by this proposed legislation on the selection of our Speaker.

Hon. John Lynch-Staunton (Leader of the Opposition): I should like to ask Senator Joyal a question. He has left me with the impression that he is arguing that, because the Speaker of the Senate votes first, although only occasionally or even rarely, and because his decisions can be appealed, he has an independent status. I, for one, fail to see it. Have I misinterpreted what the honourable senator has said?

My view is that no matter who the Speaker is, under the present system, he or she is strictly a political appointee, beholden to the government or the Prime Minister appointing him or her. No matter which party is in power, that is a fact, as far as I am concerned.

Second, the Speaker votes first, usually in a situation where the result of the vote is expected to be very close and, therefore, that vote is needed. It is not because of persuasion; it is because a vote is needed and the vote always goes to the government side. I know of no Speaker in the Senate who voted with the opposition. He or she who did so would not have lasted long in that job.

The fact that his or her opinions can be appealed is because previous Speakers have been accused of too much political content in their opinions. We remember during the GST debate what Speaker Charbonneau went through. I will not argue the merits or demerits of the opinions, but I do remember at the time that the Liberals were arguing that he was too influenced by the need to get a certain bill through. Other Speakers have also been accused of the same thing — not as flamboyantly nor as passionately as at that time, perhaps, but it has been done.

All of this is to say that, at the present time, the Speaker is a political appointee with a political mission. I have nothing against that, but I much prefer Senator Oliver's bill, which would take the Speaker out of that political atmosphere as much as possible. I might add that I know of Speakers who have, on occasion, attended their local or national caucus. That again confirms the political loyalty that the individual has and continues to maintain.

To continue in the present system, one must accept that the senator in the Chair, as Speaker, has a political mission. Senator Oliver's bill would remove that position and give the individual more true independence.

Senator Joyal: I thank the honourable senator for his question, which raises an important point. We may wish to change the system as the objective of the bill proposes but we must first meet the constitutional test that I raised in my short speech. We may wish, as the honourable senator properly indicated, to place the Speaker of the Senate beyond any presumed or alleged influence by the government, such as the selection process contemplated by this bill. That is not the point, however. When Senator Oliver asked if I would second Bill S-16, I said that I would be happy to do so but that we should look into the intricacies involved in achieving those objectives. Senator Austin proposed another way to try to achieve the desired results through the conventional route but even that approach faces constitutional hurdles. I will be clear: I am not opposed to the objectives sought by the Honourable Senator Oliver. I merely raise the constitutional issues this bill must face sooner or later.

The honourable senator raised the point that our Speaker's decisions are subject to appeal, allowing the Senate to remain, to some extent, the master of its own procedure. If, as the honourable senator proposes, the Speaker were to make a ruling that were to be seen by the house as partisan or government-influenced, the house would have the authority to appeal that decision. Honourable senators have the capacity to reflect and vote upon rulings of the Speaker, providing the Senate with a means to show dissatisfaction with the decisions of the Speaker. The Senate has had such votes, as honourable senators will recall.

At least we have that capacity. The situation could arise whereby the Speaker, appointed by the Governor in Council — the government of the day — may be in a minority position in the Senate because of a change in government. That has happened. Senator Charbonneau, as honourable senators will recall, was acting Speaker for a period of time during which the government was in a minority position in the Senate. It was also the case for this government for some time after its election in 1993. The Speaker in this position plays a key role: to maintain the credibility of the debate process. There is no question about that.

The honourable senator is absolutely right when he says that if a Speaker engages in partisan activities, such as attending caucus, party functions or other activities that are seen as partisan, there is no doubt that it would tarnish his reputation as the guardian of decorum and impartiality.

We must never forget that the Senate is a chamber of conflicting viewpoints which are the basis of our democratic system. That is why we sit in this chamber with one party facing the other, with the Speaker in the middle above the fray. It is fundamental to the credibility of the Senate that debates be conducted in a process that is fair, and the Speaker has a paramount role to play in ensuring the integrity of debate through his or her rulings.

Honourable senators, I am not opposed to the objective of improving the current method of selecting a Speaker. However, we must do it in such a way as to remain conscious of all the elements that are at stake in the endeavour. Essentially, that is my purpose in the chamber today. I propose that we have a thorough examination of the issue at the Rules Committee or at the Legal and Constitutional Affairs Committee. That would provide an opportunity for senators to consider the input of those with long experience in this chamber in an effort to avoid situations that we do not wish to repeat. This is part of the institutional memory and long-term perspective that we want to bring to the debate on this issue.

Hon. Anne C. Cools: Honourable senators, I thank Senator Joyal for his comments. I also thank Senator Oliver for his intentions in this bill, which are to find a way to make choices for the Speaker that are truly representative of the house as a whole. However, I think Bill S-16 has enormous problems.

I would like to ask Senator Joyal a couple of questions. He led me to believe that the Speaker of the Senate is appointed by an Order in Council — a Governor in Council appointment. That is not my understanding at all. My understanding is that the Speaker of the Senate is appointed under the Great Seal by the Queen's representative herself, the Governor General. It is a different instrument. We must understand that the Speaker of the Senate is not the Senate's man. The Speaker of the House of Commons is the House of Commons' man, but the Speaker of the Senate is the King's man, because the Senate — the upper chamber — is the House of the Parliaments, just as the Clerk of the Senate is the Clerk of the Parliaments. The Clerk of the House of Commons is the under-clerk of the Parliaments. The Senate is the upper chamber. The Senate is the only one of the two chambers in which the three estates of Parliament can assemble; being the Queen, or her representative, the Commons and the Senate. The system outlined in section 34 is intended to honour and to have fidelity to that particular constitutional fact. That is why, for example, we are not supposed to call the Speaker of the Senate, "Mr. Speaker." That term belongs to the House of Commons alone.

The position of Commons Speaker evolved hundreds of years ago when the King met with the commoners and decided that, unable to speak to all of them at the same time, they should choose one of their own as spokesman to him. In all fairness, for 100-odd years in this country, the Commons Speaker was chosen by government, by a process of government motion.

My question is for the Honourable Senator Joyal: How is it possible that Senator Oliver's bill could create the power for the appointment of the Speaker? I can understand how he is attempting to create a process for selecting a nominee for the Speaker's position. A characteristic of the two Houses of Parliament is that they have no power even to make the appointments of their own officers, such as their clerks, their Black Rod, their Sergeant-at-Arms, et cetera. They must rely on the power of the Queen to make those appointments. It is not without reason that the system is called the Queen in Parliament — or acting with the cabinet, the Queen in her council in her Parliament. The power to actually make those appointments remains a royal power. How can that power be created by any act of Parliament? It cannot be.

Senator Joyal: Honourable senators, I think I have read section 34 properly. Section 34 of the Constitution Act, 1867, as the honourable senator has just quoted, states very clearly that the Governor General may, from time to time, by instrument under the Great Seal of Canada, appoint a senator to be Speaker of the Senate. I think that is what I read — I did not change the letter of the Constitution. It is quite clear that it is through an instrument under the Great Seal that the Speaker is appointed. When the Speaker is appointed under the Great Seal, he is appointed through the exercise of a power that is vested in the Governor General in Council; and to act, the Governor General must have the advice of the Privy Council. That is essentially what section 34 says.

I do not think we have any dispute on the constitutional implication involved in the appointment of our Speaker. I think that it is proper that we review this thoroughly, including an examination of how the Speaker in Westminster's Parliament, the House of Lords, is appointed. I think it would be helpful to look into the procedure over there. There is no doubt that, when section 34 was drafted by the Fathers of Confederation, they paid attention to this question; they were familiar with how the system of appointment changed in 1862. They opted to reinstate the appointment process through the Governor General. There is no doubt that the issue was discussed by the Fathers of Confederation, which explains why we ended up with section 34. It was a departure from the pre-Confederation appointment process that prevailed in the Legislative Council of Canada.

Hon. Gérald-A. Beaudoin: I was interested, honourable senators, in speaking on this matter and on taking the adjournment, but if someone wants to ask another question, that is fine. This subject is so difficult that I prefer to be allowed to speak on it by way of a prepared speech.

Hon. Marcel Prud'homme: We all know that Senator Joyal is a great and knowledgeable person in these matters, but he was and still is a member of the Privy Council. I am a member of the Privy Council, by the Queen's own hand and not by way of the Governor General, but I have never been a minister. My question is simple: You keep referring to the Governor in Council, which means the Prime Minister and cabinet. To the best of your experience, having been a cabinet minister and, therefore, a member of the Queen's Privy Council, were you ever consulted in cabinet when the Prime Minister decided to appoint a Speaker, or was it solely a prime ministerial decision?

Senator Joyal: Honourable senators, Senator Prud'homme is raising a very tricky question. It is like everything else: it always appears easy but, in fact, there is a trap. There is no doubt that when the Prime Minister and his cabinet appoint a person whose status is defined by statute or in the Constitution, what happens — and this is my personal experience — is that such appointments are discussed at the end of the cabinet meeting. There is the list of the appointees, which is submitted for advice and consent — the concurrence of the cabinet. There is no vote on this list. It is concluded after the expression of opinions around the table. In such cases where a position is by way of appointment through the Governor in Council, the name of the person would be on the list of the government appointees. The Prime Minister would say, "I intend to appoint Mr. or Senator X or Z to that position. Is there any objection?" It is then signed.

In the case of senators, as you know, the appointment of senators is governed by the Constitution. I will go back to the text. It is section 24 of the Constitution. It says:

The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate...

I repeat — the Governor General from time to time — it is not the Governor General in Council. What does this mean? It means that the cabinet does not have to sit to give an opinion to the Governor General to appoint someone to the Senate. What does that mean? It means that there is only one person who may advise the Governor General in the appointment of a senator: the Prime Minister.

We have to read the text very carefully, as Senator Cools has properly said, because there are many dimensions to the convention on the exercise of those powers. Honourable senators will certainly know that it is a tradition when Her Majesty visits Ottawa for her to call a meeting of the Privy Councillors — all of them, of any political stripe. I think it is a very important tradition because it maintains the status of the Queen as head of the Privy Council. Of course, in the day-to-day administration of government, it is only the ministers of the Crown who enjoy the confidence of the House who advise on such matters. However, when Her Majesty comes to Parliament, traditionally she will meet all the Privy Councillors who have been appointed. That has been the tradition. I have attended myself, and our colleague Senator Austin, who was a Privy Councillor some years ago, has been invited to similar functions.

Senator Corbin: And he still is.

Senator Joyal: Yes, as Senator Corbin said, he still is. I will not say anything more. Senator Corbin opened the trap before me and I resisted.

However, this is an important element of the debate on this bill, honourable senators.

Hon. Jack Austin: Honourable senators, in the tradition of questions in this chamber, particularly the recent tradition of questions in this chamber, I would like to begin by saying that I believe the debate on the question of the method of appointment of the Speaker of the Senate is a useful and timely one. I must congratulate Senator Joyal for a very comprehensive and well- canvassed review of the issues.

I wanted to add a tiny footnote to his knowledge in the form of a question. Is Senator Joyal aware of the 1935 Order in Council which was passed when the Right Honourable Mackenzie King first took office? That order specifically reserved the recommendation to the Prime Minister of appointments to a number of offices, including the Supreme Court of Canada, chief justices in the provinces, and senators, and others. That recommendation was reserved specifically to the Prime Minister and only to the Prime Minister. I seek Senator Joyal's comment on this. The result is that the suggestion I made, when Senator Oliver presented the bill and made his comments on it, could run to request an amendment to that Order in Council. There is no way we can do anything in terms of the law because the law requires a constitutional change, as Senator Joyal has said. However, we could request that the Prime Minister act, with respect to the power of appointment under that Order in Council, on the advice of the Senate. Of course, this would require not an adversarial relationship with the Prime Minister of the day but an agreed process.

Again, Senator Joyal, I would like you to comment on what appears to be a change in the trend from prime ministerial to perhaps a more consensual and cabinet form of governance. As honourable senators are aware, there are a number of suggestions that would change the role of parliamentarians in dealing with the so-called democratic deficit expressed in terms of parliamentary practice.

When the appropriate committee deals with Bill C-16, does Senator Joyal think it would be appropriate for the committee to look at the larger issue of parliamentary authority and the appointment to various offices by Parliament in the context of this particular bill?

Senator Joyal: Honourable senators, I thank Senator Austin for his question. It brought to my mind a lot of suggestions and comments that have been made, especially this past summer, on the appointment of senators.

Honourable senators will recall that, last summer, about mid- August, an article was published on this issue in Maclean's magazine. I cannot give the date but I think you will all remember it. That article suggested that senators be appointed from a list provided by the provinces. It was circulated, commented upon and abundantly reported. That struck me because, of course, as I said earlier, senators are appointed by the Governor General, not in council and, as Senator Austin has just reminded us, on the advice of the Prime Minister alone. In other words, the Prime Minister consults himself, with himself, by himself, and then calls the Governor General with the news. There is no doubt that the Prime Minister owes anyone an explanation in the exercise of this conventional power.

As Senator Austin just mentioned, in the case of senators, the proposal that was floated last summer defies the logic of our Constitution. Why? Because it would bind the Prime Minister in a way that would transfer the practical exercise of his power of appointment into the hands of the provincial premiers. I remind you of the Supreme Court of Canada's landmark reference in 1980. I wonder if we have senators in this chamber who were here in 1979 when that key decision of the Supreme Court on the status of our institution was made public? Senator Graham was here and I am sure there are others. If I were a professor talking to students about the Senate, I would refer to the Supreme Court reference of 1980 as required reading — "Senate 101" if you like.

At page 77 of that decision, the Supreme Court states clearly that any selection of senators from a list provided by provincial legislatures, or selected by legislatures themselves, would effectively be a transfer of the power of appointment to another level of government, which was not contemplated in the Constitution Act, 1867. To do so would circumvent the Constitution, essentially amending it without going through the required procedure of amendment at section 38 of the Constitution Act, 1982.

Senator Austin's proposal requires the cooperation of the Prime Minister of the day. That would be, in fact — and I use a negative word here — a framing.

[Translation]

Such a practice would frame the powers of the Prime Minister.

[English]

As I said earlier, the Prime Minister can consult whomever he wishes on the appointment of senators. There is nothing to prevent him from consulting us now. What cannot be done is the transfer of that power to another authority outside of this body.

The suggestion of Senator Austin is very appealing. I may give the impression here of advertising our book, Protecting Canadian Democracy: The Senate You Never Knew, published last May. Some proposals were made in the book, especially by Professor David Smith, to frame the exercise of the conventional power of the Prime Minister to advise the Governor General. I will give you some examples. The Prime Minister could issue a statement saying, "When I exercise my conventional power of appointment, I will take into account gender parity and a fair representation of our Aboriginal peoples in Canada; I will take into account a fair representation of visible minorities in Canada." We all know that the electoral system in the other place gives a distortion in terms of "representativeness" of the other place. The Prime Minister could issue a public statement saying: "Here are my objectives and my policy framework for the exercise of my power."

For instance, in the case of the Speaker, the Prime Minister could announce that he will consult with the Senate. However, we cannot simply jettison section 34 of the Constitution Act, 1867. There are many ways, in my opinion, to address this issue and to bring about improvement of the system.

On motion of Senator Beaudoin, debate adjourned