Concorda University profession Gad Saad and transexual blogger and activists Theryn Meyer join the Standing Senate Committee on Legal and Constitutional Affairs (LCJC) and provide a thoughtful and unique perspective on the movement behind bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code.
University of Toronto psychology professor Jordan Peterson and Senior Legal Council Jared Brown join the Standing Senate Committee on Legal and Constitutional Affairs (LCJC) and present one of the most comprehensive and articulate arguments against the winds of change behind Bill C-16, An Act to Amend the Canadian Human Rights Act and Criminal Code.
You may have already noticed that bill C-1 and S-1 are not located anywhere in the Status of Government Legislation posts featured on this blog. There is actually a good and very interesting reason for this. In this post we will examine the practical purpose of bills C-1 and S-1 in each session of Parliament and briefly review the historical perspectives of these bills.
Each session of Parliament begins with the formal opening of said Parliament with a Speech from the Throne delivered by the Governor-General on behalf of the reigning Monarch (monarchs have delivered this speech in Canada on various occasions) in the Senate Chamber. However, before the session begins, before all of the MPs make the trek from the House of Commons to the Senate and before all of the Senators and Justices of the Supreme Court take their seats before a filled regal chair in the Senate Chamber the entire Parliament is summoned by the Governor-General on the advice of the Prime Minister. The summoning of Parliament is a formal requirement in accordance with our constitution and established conventions on the opening of a session of parliament. The Summons itself is a Crown prerogative that on convention is exercised on the advice of the Prime Minister and is the literal formation of a particular Parliament by the Crown-in-Canada. This fact is important, the formation of our democratically elected House of Commons and appointed Senate into a particular Parliament with all of the powers, authorities and privileges required to conduct the democratic will of Canadians is rested upon the ordering of certain persons to Ottawa by the Crown. The glaring authority of the Crown in the formation of Parliament is made obvious in the direction the Crown gives to the Usher of the Black Rod to collect Members of Parliament from the House of Commons and summon them, on their feet before the Bar of the Senate, to listen to the Crown’s priorities and objectives for the government and the upcoming parliamentary session.
At the end of the Speech from the Throne, MPs return to the House of Commons and Senators continue business in the Senate. In the House of Commons bill C-1 is normally proposed by the Prime Minister and is titled An Act respecting the Administration of Oaths of Office. In the Senate, bill S-1 is proposed by the Senator representing the Government and is titled An Act relating to Railways. Each bill is considered to be pro forma, in that their mere form represents the historical purpose of the proposed legislation. Each is given a first reading and then is never moved again. And each bill has nothing to do with the title, in fact in recent times the bill itself it not even printed or published. But they are arguably the most important pieces of legislation in each session of parliament. These bills represent the automous nature of Parliament and specifically of each House of parliament. Regardless of what reason the Crown gives in the Senate during the Speech from the Throne for why the Parliament has been summoned and regardless of what priorities the Crown has established for the Government, both Houses assert their independence and ability to set their own business. Without these bills, the Houses may be compelled to conduct only business strictly related to that outlined in the Speech from the Throne, or at least historically that would have been the case.
Each bill is a carry over practice from the British Parliament. In the UK, each session of Parliament begins with the presentation of the Speech from the Throne (albeit with the actual reigning Monarch) and when MPs return to the House of Commons, the government presents C-1, the Outlawries Bill. Like our own C-1 and S-1, the bill is read a first time and then never again dispensed with during the session. Rarely is the bill printed today. And just like the Canadian custom, the bill signifies the independence of Parliament from the Crown. During a review of House of Commons practice in 2002, the Procedure Committee reviewed the practice and determined that it had historical significance with little impact on other business and therefore had no reason to be removed from practice.
You will not see bill C-1 and bill S-1 on the Status of Government Legislation series on this blog because there is little reason to list it constantly in Second Reading in the House of Commons and the Senate respectively. However, that does not undermine their importance. Bills C-1 and S-1 are a constant reminder of the independence of parliament and the democratic authority that we mandate to our elected representatives in Ottawa. Their importance in a free and democratic society cannot be overstated.
Canadians from coast to coast to coast will soon be receiving a shiny postcard in the mail from the Government of Canada inviting them to participate in a new online survey on electoral reform that the Liberals are calling MyDemocracy.ca. The purpose of the new survey, according to Minister of Democratic Institutions Maryam Monsef, is to engage all Canadians on the issue of electoral reform and to gauge the public desire for the kind of change the government should seek regarding electoral reform. During her brief interview on The Agenda with Steve Paiken last week, the minister explained that several Canadians were unable to attend the ERRE committee meetings that were held in every province and territory in Canada and specifically mentioned rural Canadians who did not have a chance to get out to meetings that were more often than not conducted in large urban centres.
On the face of it, there should be no issue with the government in our modern digital age drafting and sending out an online survey to gauge public opinion on any given issue, the problem here comes from the fact that we have already had an all-party parliamentary committee review the issue and engage Canadians and they submitted a report that was well over 300-pages that provided recommendations to the House of Commons on moving forward on this issue. But the report did not detail what the government secretly wants for electoral reform, specifically that there be no national referendum on the issue and that a ranked ballot PR system form the way ahead in Canada (the Liberals support a ranked ballot system because as the traditional centre party, they will almost always capture run-off second and third choice votes). The NDP has been pushing for a RP system for quite some time, as have the Greens and the Conservatives maintain that any changes to our electoral system required a mandate directly from Canadians in the form of a referendum on the question. The report from the ERRE committee was a product of the current lay of the land in the House of Commons, namely that the Conservatives as official opposition were able to secure the position in the report that a referendum is probably the best way forward and the NDP and Greens both were able to secure a mention that PR was probably the best system to use in Canada. It is important to note that this current “lay of the land” in the House of Commons is the result of the democratic will of Canadians expressed in the previous general election that sent the Liberals to the government benches. These conclusions made Minister Monsef quite upset which lead her to outburst in the House of Commons, attacking the committee for not doing the work it was suppose to do. She later had to backtrack and apologize, but the damage was done. It was also one of the first times in recent memory that a majority government has submitted a minority report alongside a committee report in Parliament.
Monsef has stated that the government’s plan all along was to propose this survey to Canadians, which is mind-boggling because they allowed the ERRE committee to continue what was essentially parallel proceedings without once mentioning that they had a plan to do their own thing down the road. But it gets worse, Monsef was clear during her interview with Steve Paiken, that the government believes the positions outlined in the committee report do not reflect the will of Canadians and that the Liberals, somehow, have some greater insight into the electorate that requires going outside of parliament to get to the source of the concerns of Canadians. There are serious democratic implications for the position of her government, namely the richness of claiming that a report compiled by duly elected Members of Parliament somehow does not and cannot reflect the will of Canadians. Does she understand that such a statement is clearly laying bare the fact that this government does not in any way feel beholden to parliament on the issue? What makes electoral reform so different that the government is not required to have support in the House on the file?
I think that an easy way of understanding how the government is approaching the file can be articulated in an analogy of tree shaking. The Liberals stand around the tree of Canadian opinion and shake and shake and when an apple falls that is not to their own particular liking, for example that Canadians support a referendum on electoral reform, they shake and shake some more saying that “well, not everyone was consulted so we have a duty to ask again.” And when another apple that is not to their own liking falls again they put up their hands and say, “we are here to include all Canadians from all walks of life, and this tree is flawed, let’s try again to get their opinion.” And they shake and shake again until an apple of their liking has fallen to their feet all of the while coming up with vague and soft points on why the previous tree shaking was inferior to the next. Never minding the fact that Canadian taxpayers pay hundreds of millions of dollars to keep the institution of parliament running as a means of governing the country and expressing their will between election periods. We have a Liberal government that is committed to the people, and thus committed to circumnavigating parliament on this file— at least until the right apple falls.
Furthermore, the Liberals are becoming extremely dismissive with Canadians on the file. When questioned why her government did not include more specific questions on forms of electoral systems that could be implemented in Canada, Monsef explained that Canadians do not understand FPTP, MMP, PR and STV and that the issue was too complex and too technical to engage the majority of Canadians. I feel as if Minister Monsef might be projecting her own misunderstandings and difficulty comprehending our Canadian democracy and various electoral systems on to Canadians. At best it is government handling an electorate with kid gloves, at worse it is condescending and arrogant. Either way it does not make good politics for a government that is supposed to be sunny-ways and supportive. You cannot, with one side of you mouth, say that you value engagement and then criticize the quality of results from said engagement, that is double-speak. However, if Canadians are in fact not informed on this subject, it does start to beg the question of it’s importance to everyday Canadian at the moment. Is it possible that the government has created a mountain out of a mole hill here on electoral reform? Especially when we consider how many Canadians are currently out of work, how many are looking down the barrel of losing they jobs and how many young Canadians are fearful for employment in the future. Is electoral reform really something that the government should be pushing at the moment?
At the end of the day, Justin Trudeau made a promise to Canadians that the 2015 election would be the last under first-past-the-post in Canada, it is arguable whether or not this promise and his election victory earned his government a solid mandate to move forward on the file unilaterally. Conservative interim leader Rona Ambrose has handed the government an out in saying that they should drop 2019 as a goal line and should focus on more pressing issues in the country. I am inclined to agree with her, it is time for the Liberal government to drop electoral reform, at least during this current parliament.
Parliament Hill is one of the most beautiful seats of government in the world. The transformation of Ottawa from a back-water logging town, miles away from anything of any importance in early Canada, has been carefully crafted to create a city that reflects the diverse and unique culture and history of Canada. In particular, icons in and around the Parliament Buildings, including within the House of Commons and Senate chambers, present to Canadians a stunning visual history of their roots and aspirations in the formation of a country forged out of distant New World colonies and vast wilderness. In this post we will explore Parliament Hill and learn about the history and intent of icons which have been crafted around the Parliament Buildings.
The Centennial Flame was lit on 1 January 1967 to mark the 100th anniversary of Confederation at the start of the year. It was lit in the presence of then Prime Minister Leaster B. Pearson. The monument is in the form of a flame that burns above a fountain that is lined with the coat of arms of all 10 provinces in Canada. It was envisioned by the federal government and contracted as a joint venture with the provinces in order to honour the provinces uniquely during the centennial celebrations. It has become tradition in Canada for Canadians visiting Parliament Hill to toss coin change into the fountain for good luck. The money collected through this is deposited in a government account and funds the Centennial Flame Research Award which is given “to a person with a disability to enable him or her to conduct research and prepare a report on the contributions of one or more Canadians with disabilities to the public life of Canada or the activities of Parliament.” The Centennial Flame is often mistakenly called the eternal flame. The flame however is not eternal and is often extinguished in bad weather (common in Ottawa) or for routine maintenance– interestingly, however, the fountain does not freeze during winter because of the heating from the flame slightly above the waterline.
The Peace Tower that dominates Centre Block is probably one of the most recognizable features of Parliament Hill and Ottawa as a whole. The tower is 92.2 m tall and features approximately 370 gargoyles, grotesques, and friezes which are common in the Victorian High Gothic style of the Parliamentary precent. After the fire that took the original Centre Block in 1916, the creation of a memorial at the end of World War I coincided, and a tower for the facade of the new Centre Block was conceived. It was officially unveiled in 1922. Within the tower, above the porte-cochere, there is a memorial to all who died during the First World War called the Memorial Chamber. It is a valued 7.3 by 7.3 metre space with tall stained glass windows and the floor is made up of brass plates from shells used during the war. Near the peak of the Peace Tower is a 53-bell carillon that was dedicated to the commemoration of the 1918 armistice that ended World War I and was inaugurated on 1 July 1927, the 60th anniversary of Confederation. The Peace Tower was the first location that the new maple leaf Canadian Flag was flown above Parliament Hill on 15 February 1965.
The Library of Parliament is the oldest part of the Centre Block as a result of a quick thinking clerk closing the giant bronze doors that separate it from the rest of the building during the fire in 1916. The design of the library was inspired by the British Museum Reading Room and is formed circular in the form of a chapter house. It is separated from Centre Block via the Hall of Honour. The roots of the Library go back to the 1790s when the legislatures of Upper and Lower Canada established libraries along the lines of the UK parliament. With the uniting of the two regions under the United Province of Canada the libraries were merged and continued through Confederation in 1867. The Library features Hansard records from almost every legislative assembly in Canada, periodicals for MPs and Senators and significant state reports and publications. Since 1870 there have been only eight Parliamentary Librarians.
When entering Centre Block from the main entrance and walking through the porte-cochere of the Peace Tower one immediately enters Confederation Hall. The entire Centre Block is arranged symmetrically around Confederation Hall and the columns and stone work that dominates the walls and vaulted ceiling present a bold and confident entrance for the seat of government. The arcaded arches are topped by gables sculpted to commemorate the confederated nature of Canada and they support one side of the hall’s fan vaulted ceiling with carved bosses, while the other side rests on a single column in the centre of the room. This column is borne on a stone carved with an image of Neptune amongst sea lions and fish in a mythical sea. It was placed at noon on 2 July 1917, to mark the 50th anniversary of Confederation, and above it was carved the words:
1867 JULY 1917 ON THE FIFTIETH ANNIVERSARY OF THE CONFEDERATION OF BRITISH COLONIES IN NORTH AMERICA AS THE DOMINION OF CANADA THE PARLIAMENT AND PEOPLE DEDICATE THIS BUILDING IN PROCESS OF RECONSTRUCTION AFTER DAMAGE BY FIRE AS A MEMORIAL OF THE DEEDS OF THEIR FOREFATHERS AND OF THE VALOUR OF THOSE CANADIANS WHO IN THE GREAT WAR FOUGHT FOR THE LIBERTIES OF CANADA, OF THE EMPIRE AND OF HUMANITY.
Running along a north-south axis from Confederation Hall to the Library of Parliament is the Hall of Honour. This passageway serves as the corridors where the Speakers of both Houses of Parliament traverse during the Opening of Parliament and the start of each new sitting of Parliament. It is also the location of laying persons receiving state honours for funerals. The hall is bisected by small, vaulted corridors, the east one leading to a committee room, and the west to the old reading room; the latter is known as the Correspondents’ Entrance, as it is lined with bosses and label stops sculpted by Cléophas Soucy between 1949 and 1950 into the visages of ten notable parliamentary correspondents: Charles Bishop, Henri Bourassa, John Wesley Dafoe, Joseph Howe, Grattan O’Leary, Frank Oliver, John Ross Robertson, Philip Dansken Ross, Joseph Israël Tarte, and Robert S. White. he Hall of Honour was intended to be a gallery where statues of notable Canadians would be arranged in the niches along each side. That plan was later abandoned in favour of a more general purpose of commemorating the 1916 fire, as well as honouring those who participated in the Great War. The sculptures remain incomplete; only the north end, closest to the Library of Parliament, has completed carvings.
House of Commons
Centre Block houses both Houses of Parliament. The House of Commons is located in the west side of the building and the Senate is located in the east. The foyer of the House of Commons is accessed via the South Corridor of Confederation Hall. The threshold of the House of Commons features a large ornately carved wooden double door. This is one of the most public spaces within parliament (aside from the House of Commons chamber itself) and is a common feature of news broadcasts across Canada during scrums following significant events within the Commons chamber. It was also a personal favourite location for Prime Minister Stephen Harper to conduct official government announcements. On either side of the entrance are wooden coat lockers for Members of Parliament.
The building’s western wing contains the House of Commons chamber, along with its antechamber and lobbies for the government and opposition, on the east and west sides of the main commons space. The doors to all are of white oak trimmed with hand-wrought iron.
The chamber is 21 metres long, 16 metres wide, and has seats for 320 members of parliament and 580 persons in the upper gallery that runs around the room’s second level. The overall colour scheme is in green—visible in the carpeting, bench upholstery, draperies, paint within the gilded honeycomb cork plaster work of the cove, and the stretched linen canvas over the ceiling—and is reflective of the colour used in the House of Commons of the United Kingdom since at least 1663. That canvas, sitting 14.7 m above the commons floor and designed in 1920 by the New York decorating firm Mack, Jenney and Tyler, is painted with the heraldic symbols of the Canadian, provincial, and territorial coats of arms, with medallions at the intersections of diagonal stencilled bands in an argyle pattern. Running below this, and above the cove, is a continuous gold leafcornicecreated in 1919 by Ferdinand Anthony Leonard Cerracchio (1888-1964), which displays a row of gilt figures, broken at the peak of each pointed arch by cherubs holding a cartouche, and behind all of which runs a painted grapevine with Tudor roses.
On the floor, the opposing members’ benches are spaced 3.96 m apart on either side of the room, a measurement said to be equivalent to two swords’ length, harkening back to when English members of parliament carried swords into the chamber. Directly between, directly opposite the main door, on the chamber’s axis, is the speaker‘s chair, made in 1921 by the English firm of Harry Hems as an exact replica of that in the British House of Commons. It is topped by a carved wood canopy bearing a rendition of the royal coat of arms of Canada sculpted in wood from the roof of the Westminster Hall, which was built in 1397; the whole was a gift from the British branch of what is today the Commonwealth Parliamentary Association. The chair has since been augmented with a hydraulic lift, lighting, writing surfaces, and, at the foot of the chair, a television screen and computer screen to aid the speaker in monitoring the process of the house. Behind the chair is a door that gives the speaker access to the speaker’s corridor, which links the commons chamber to the speaker’s chambers, and which is lined with portraits of past speakers of the House of Commons.
In the commons chamber’s east and west walls are 12 windows topped by pointed arches with hood moulds terminated by pendant drops. The glazing within is stained glass, commissioned as a Centennial Project in 1967 by then Speaker of the House of Commons Lucien Lamoureux. Each window contains approximately 2,000 pieces of hand-blown glass—created in Ottawa by Russell C. Goodman using medieval techniques—arranged in a Decorated Gothic style pattern designed by R. Eleanor Milne. Divided into four sections by stone mullions, the upper parts contain geometrical tracery and provincial and territorial floral emblems amongst ferns; in the tracery at the head of the windows are symbols extracted from the coats of arms of the provinces and territories.
As with other areas of the Centre Block, the commons walls are enriched with shafts, blind tracery, friezes, and a sculpture programme. The room was the last space in the building to be carved, with sculptural work only beginning in the late 1950s and continuing intermittently for the following two decades; approximately 225 blocks of varying sizes still remain uncarved. Amongst the work done are three series of stone works: The British North America Act, a set of 12 high reliefs on the east and west walls of the chamber, carved between 1978 and 1985, and illustrating through symbols and narrative themes associated with the federal and provincial responsibilities laid out in the British North America Act; Evolution of Life, a series of 14 sculptures within the spandrels of the pier-arches at the north and south ends of the House of Commons, depicting Canada’s palaeontological past and the evolution of humanity through philosophy, science, and the imagination; and Speakers and Clerks, comprising four heads carved on the jambs of the two doors on either side of the Speaker’s chair, depicting the speakers and clerks of the House of Commons at the time of the opening of both parliament buildings in 1867 and 1920, respectively.
To the Senate’s immediate south is the Senate foyer, a double height space surrounded by a double layered colonnade, the inside ring of attached shaft columns rising to the ceiling and the outside ring of rose coloured limestone columns supporting a second floor gallery. Within the stonework are sculpted depictions of important figures in pre-Confederation Canada, as well as self-portraits of the sculptors who fashioned the stone. A number are dedicated as the Sovereigns’ Arches, with corbels sculpted into depictions of Canada’s monarchs; the latest addition being that of Queen Elizabeth II, unveiled on 9 December 2010. The entire ceiling is of a Tudor style stone tracery filled with stained glass depicting royal emblems, such as provincial coats of arms, as well as symbols of First Nations and the names of all the speakers of the Senate up until the ceiling’s installation in 1920. Above the exterior entrance into the foyer is a stained glass window commemorating the Diamond Jubilee of Queen Elizabeth II. Designed by Christopher Goodman and Angela Zissoff of Kelowna, British Columbia, with input from the Speaker of the Senate, Noël A. Kinsella, and the Canadian Secretary to the Queen and Usher of the Black Rod, Kevin MacLeod, and approved by the Queen, the window shows Elizabeth and Queen Victoria with their respective royal cyphers and renditions of the Centre Block during the reign of each monarch. A gift to the monarch from the Senate, it was constructed over six weeks from 500 pieces of machine made and mouth-blown glass from France, the United Kingdom, Germany, and the United States. The Queen unveiled a model at Rideau Hall on 30 June 2011 and, after the finished piece’s installation, the window was dedicated by Governor GeneralDavid Johnston on 7 February 2012.
The Senate chamber’s overall colour is red, seen in the upholstery, carpeting, and draperies, and reflecting the colour scheme of the House of Lords in the United Kingdom; red was a more royal colour, associated with the Crown and hereditary peers. Capping the room is a gilt ceiling with deep octagonal coffers, each filled with heraldic symbols, including maple leaves, fleurs-de-lis, lions rampant, clàrsach, Welsh Dragons, and lions passant. This plane rests on six pairs and four single pilasters, each of which is capped by a caryatid, and between which are clerestory windows. Below the windows is a continuous architrave, broken only by baldachins at the base of each of the above pilasters.
On the chamber’s east and west walls are eight murals depicting scenes from the First World War. Painted in between 1916 and 1920, they were originally part of the more than 1,000 piece Canadian War Memorials Fund, founded by the Lord Beaverbrook, and were intended to hang in a specific memorial structure. But the project was never completed, and the works were stored at the National Gallery of Canada until, in 1921, parliament requested some of the collection’s oil paintings on loan for display in the Centre Block. The murals have remained in the Senate chamber ever since.
Edgar Bundy‘s Landing of the First Canadian Division at Saint-Nazaire, 1915, depicts the first landing of Canadian troops in France, at Saint-Nazaire, led off the Novian by the pipe band of the Black Watch (Royal Highland Regiment) of Canada, and watched by officers, troops, and townspeople. Algernon Talmage painted A Mobile Veterinary Unit in France, showing a scene on the Cambrai front, where a Canadian Mobile Veterinary Unit is taking wounded horses to an evacuating station. Railway Construction in France was painted by Leonard Richmond to show the construction of a railway by the Canadian Overseas Railway Construction Corps, in the deepest trench in France. James Kerr-Lawson was commissioned by the Canadian War Memorials Fund to create both Arras, the Dead City—which depicts the ruins of Arras Cathedral as they were in 1917—and The Cloth Hall, Ypres, a painting of the destroyed, 600-year-old Cloth Hall in Ypres. Claire Atwood‘s On Leave documents (as battlefield scenes were thought inappropriate subject matter for female artists) the home front activities of the Canadian Expeditionary Force at a YMCA canteen in one of London‘s train stations as they await their train to the battlefront. The Watch on the Rhine (The Last Phase) was painted by Sir William Rothenstein to symbolically represent the defeat of Germany, with a British howitzer facing across the Rhine, and old and new Germany embodied in the ancient hills and factory chimney. And Sir George Clausen‘s Returning to the Reconquered Land was painted to illustrate agricultural land behind the front lines in France and shows people returning to their destroyed homes following the armistice.
The recent nomination of Justice Rowe and the new approach that the Liberal government has taken to the appointment of members of the Supreme Court of Canada has invoked a lot of discussion around constitutional conventions. In this post we are going to examine the nature and usage of constitutional conventions in Canada with an eye toward their historical development.
Our Constitution: Written and Unwritten
From a legal perspective, the constitution of Canada does not encompass any one or two documents but a host of documents spanning from the Royal Proclamation, 1762 to the Canada Act, 1982 (the latter of which repatriated our constitution from the United Kingdom and established the Charter of Rights and Freedoms). The Constitution Act, 1982 provides for a list of documents to be considered as “constitutional documents” including the Canada Act, 1982 and the Constitution Act, 1867. However, the Supreme Court has maintained that several pre-Confederation acts (include the Quebec Act, 1774) and other acts (provisions of the Elections Canada Act, for example) ought to be considered with similar weight as specifically listed documents in the schedule of the Constitution Act, 1982. It is worth noting that even in the application and understanding of what documents ought to be considered of a constitutional nature and what documents should not includes forces from both the written and unwritten (or blended) parts of our state structure.
The preamble of the Constitution Act, 1867 calls for a parliament similar in nature to that of the United Kingdom. Ironically, writing down such a provision within a document to be considered the new country’s constitution was actually a departure from British parliamentary tradition. In the United Kingdom, the constitution is entirely unwritten and only recently have written documents such as provisions for the devolvement of state powers within the realm been given the weight of the unwritten provisions of the constitution (similar to how we have arranged ourselves in Canada). At any rate, however, the Dominion of Canada was founded on the premise that the state and the government within parliament be executed in similar fashion to that of the Mother Parliament. For this reason, unwritten provisions of our constitutional fabric were adopted from the United Kingdom. Provisions such as the formation of government visa a vise a Prime Minister and cabinet and the inherent privilege of Members of Parliament, including Senators, in order to properly execute their functions as representatives of Canadians. None of these provisions are mentioned in any constitutional documents, and they did and do not have to be because Canada does function in similar nature to that of the United Kingdom and our early leaders understood how the government of the UK functioned (and if they slipped, the Queen’s Privy Council was not very far). This is markedly different from the positive law of the United States or, even more so, that of Germany. In those systems, it would be impossible to enforce unwritten rules because the entire structure of law is based on the premise that the law must be made clear for citizens. Which begs the question, why do we still have unwritten portions of our constitution?
Conventions: Constitutional Mortar
There are serious advantages to having constitutional conventions and it can even be argued that no state truly functions without at least some unwritten portions of their governing documents. There are significant conventions which dictate the democratic nature of our government, such as the convention of responsible government which is executed when the Governor-General invites the leader with the plurality of seats in the House of Commons to form government and for the executive to be drawn from the ranks of parliamentarians (primarily the House of Commons). There are mundane conventions that keep the government running smoothly and, most importantly, predictably in the interest of Canadians. An easy way to understand the importance of conventions is to think of an agreement that you have made between you and a friend over a repayment of some money. You agree to pay your friend five dollars each week until your twenty dollar owed balanced in paid in full. You write down this agreement clearly and you both sign the document. What you did not include in the document was that weeks consider to start on Monday, you get paid on Thursdays so you expected to provide payment each Thursday and if you did not pay you would have to renegotiate a new agreement or your friend could ask for the full money back immediately. These unwritten understandings between you and your friend are similar to that of conventions within the formation of the state. They have a strong benefit in that they can be changed without having to reopen the original agreement (say, for example your employer starts to pay you on Monday rather than Thursday half way through the payment period). This is important in a national sense, especially in a federation, because grand agreements of the state (i.e. the constitutional documents) are usually agreed upon at a certain time and place and it would represent near-chaos to reopen discussion on amendments at a particular time (this is especially true in Canada given the Meech Lake and Charlottetown accords).
Constitutional conventions, interestingly enough, are not enforceable in the courts (although they will acknowledge their existence and function in our governing system). This is important. A key element of constitutional conventions is that they exist so long as the parties involved believe them to be relevant and applicable. Who these “parties” are can vary but will almost always include the government and the official opposition. Canada would be outraged if the Governor-General refused to invite the duly elected leader of the party with a plurality of seats in the House of Commons to form government. And this would not change the convention regardless of the fact that the Governor-General, by written law, has the right to appoint who-ever they wish to form government, it would incite a constitutional crisis on the merits of the violation of the convention. However, take for example the recent announcement of the Trudeau government to look beyond the regional convention pertaining to the appointment of members of the Supreme Court. This is a convention that the government claims is weak and has no relevance in Canada because it ought to be the most qualified (albeit and apparently functionally bilingual) candidate who should be selected. The convention could very well be changing before us, and this is how they do change, especially when the general public does not raise a stink about the issue being changed (and in this case they actually seem to strongly support the Trudeau government position in the Supreme Court matter).
The Inevitable Unwritten
An appropriate closing is the reflection and observation that it is impossible to truly have a pure written constitution with all functions of the government being entrenched in mandated law. There will always be agreements or what some might call “common sense” and “obvious” functions of the state and government that will go beyond what is written but will not violate it. Additionally, each provision of the constitution calling on a particular state actor to act would require unwritten elements regardless the nature of the conduct of this act. It would certainly be burdensome and inappropriate to list each and every aspect of a certain function of state within the constitution documents.
During consideration on a particular bill or motion, it may be prudent for the House of Commons to resolve itself into a committee composed of all of the members of the House. These committees are known as Committees of the Whole and they have a unique purpose in the body of parliamentary procedure. Each time the House sits as a Committee of the Whole, a new committee of that particular session is formed, thus, over the span of a session many ad hoc Committees of the Whole can be formed.
A Historical Perspective
Committees of the Whole were borne out of the British parliamentary tradition of grand committees that started prior to the reign of King James I. These committees considered legislation that was brought before the House and it became practice to allow any member who was in attendance of these meetings to speak and be heard. It was during the reign of James I and Charles I in the mid-1600s that these grand committees became known as Committees of the Whole and procedures similar to what we have today in Canada were formalized in our parliamentary tradition. In their early days, Committees of the Whole were forums that were struck to debate bills of great interest. By forming a committee outside of the sitting of the House of Commons itself, ordinary members were afforded a greater chance of getting their questions heard and answered. More importantly, the removal of the Speaker and all officers of parliament who were viewed to have the interest of the King at heart, meant that members were given more latitude to discuss controversial subjects.
There is as little sense of reality in appointing a committee of sixty members as there is in having a Committee of the Whole of 265: it is hopeless to expect a committee of such size to accomplish any useful work. (W.F. Dawson, Procedure in the Canadian House of Commons, p. 209)
In Canada the colonies adopted the practices of the British House of Commons and thus Committees of the Whole were brought over. In Lower Canada, four grand committees were struck at the start of each session that covered four broad but important areas of government. Addresses to the Crown were often first proposed and debated in the Committee of the Whole. At Confederation, the Parliament of Canada adopted the procedures of the former Legislative Assembly of the Province of Canada which required that issues of taxation, trade or public revenue had to be first considered by a Committee of the Whole before any resolution or bill could be passed by the House of Commons.
From 1867 to 1968 there were three main committees of the whole House of Commons; the Committee of Supply, the Committee of Ways and Means and Committees of the Whole House. The House of Commons often resolved into the Committee of Supply to consider budgetary matters and supply estimates provided to the House by the government. In 1968 after a special committee was struck to review and revise the rules of the House of Commons, changes were made to the committee structure. Standing Committees would be formed at the start of each session with membership limited to a certain number of members and partisan representation being based on the composition of the House as a whole. The process of resolving into a Committee of the Whole for matters of routine legislation, which financial matters were increasingly being viewed as, was seen as too cumbersome and complex for the entire House. The new streamlined process saw most Committees of the Whole in Canada fall by the wayside. And by 1975, the only remaining committee composed of all members of the House of Commons is the Committee of the Whole itself.
Special Rules and Procedures
When the House resolves into a Committee of the Whole there are significant changes to the rules and procedures which govern that particular body. While Standing Order 101 clearly states that all rules and procedures of the House of Commons shall remain in force while the House is resolved into a Committee of the Whole, it goes on to further add that rules pertaining to the seconding of motions and the length of speeches do not apply while in a Committee of the Whole. In fact, one of the most attractive aspects about Committees of the Whole is that members are permitted to speak more than once and may speak for up to 20 minutes on a particular topic, provided it is relevant to the bill or motion at hand. The general decorum while in a Committee of the Whole is much less formal that when the House itself is in session. The Speaker, for example, is not present in the Chair and actually leaves the Chamber entirely while the committee is meeting. The Mace is moved from the Table to the bracket just below out of sight. Members are not required to stand in their place to speak (they may sit anywhere they like in the House) and often civil servants are brought to the floor of the House to assist Ministers or Parliamentary Secretaries during deliberations.
On 11 June 2008, Stephen Harper issued an apology to aboriginal Canadians for the role of the federal government in the residential school system. During this apology, the House resolved itself into a Committee of the Whole which allowed aboriginal leaders to be on the floor of the Chamber during the speech and as well to address members present following the remarks from the Prime Minister. This is an example of the differences between the House of Commons being in session and being resolved into a Committee of the Whole.
Procedures for Resolving into Committee
The rules and procedures regarding how the House of Commons resolves into a Committee of the Whole have changed over time. Today, an order in placed on the Order Paper for the Speaker to vacate the Chair and the House to resolve into a Committee of the Whole is carried out without debate or objection. Once read in the House at the appropriate time, the Speaker simply gets up and leaves the Chair and the Chamber. The Sergeant-at-Arms will move the Mace from its place at the Table to the bracket just underneath the Table and all of the Officers of Parliament will vacate the Chamber. The Deputy Speaker, or more accurately, the Chair of the Committee of the Whole takes their place at the end of the Table (where the Clerk of the House of Commons typically sits) and the Speaker’s Chair is left vacant. The image of a vacant Speaker’s Chair and the Table will no Mace present is a sign that the House of Commons is no longer in formal session and has resolved into a Committee of the Whole. Individual members may also begin moving about the House at this time. It is not uncommon for the minister or parliamentary secretary relevant to the particular item being considered to take a seat along the front bench where government members normally sit. It is also not uncommon for civil servants to be escorted into and out of the Chamber during this time to assist ministers or parliamentary secretaries during the meeting of the committee.
When an Order of the Day is read for the House to go into a Committee of the Whole or when it is ordered that a bill be considered in a Committee of the Whole, the Speaker shall leave the Chair without question put. (House of Commons Standing Order 100)
A quorum of 20 members is required for the committee to sit. The quorum must be present when the House resolves itself into committee and during the entirety of the meeting. If at any time a member rises to draw to attention to a lack of quorum, the Chair will count members present and if a quorum is not met they will vacate the chair and report the status to the Speaker. The Speaker will take their chair and the Chair of the Committee of the Whole will report to the Speaker that a quorum is not present. If at this time the Speaker sees that there still is no quorum present than they will order the bells rung. If after 15 minutes of the bells ringing quorum has not been met than the House and committee will adjourn for the day and the proceedings will resume where they left off the following day.
Conduct of Debate
There are four unique characteristics of a Committee of the Whole in contrast to the rules and procedures in place when the House of Commons is in session. First, the rules of motions and the seconding of motions is different. No motion from the Committee of the Whole requires a seconder and motions may only be withdrawn by the mover or by unanimous consent of the committee. Second, members may speak more than once and, third, members may speak for up to 20 minutes with the exception of the Prime Minister and Leader of the Opposition who have unlimited time to speak, if they wish. And lastly, members are not required to be in their place during the meeting of the committee and often move about the Chamber during the meeting.
(1) The Standing Orders of the House shall be observed in Committees of the Whole so far as may be applicable, except the Standing Orders as to the seconding of motions, limiting the number of times of speaking and the length of speeches.
(2) Speeches in Committees of the Whole must be strictly relevant to the item or clause under consideration.
(3) No Member, except the Prime Minister and the Leader of the Opposition, shall speak for more than twenty minutes at a time in any Committee of the Whole. (House of Commons Standing Order 101)
When the Committee of the Whole is interrupted to permit the House of Commons to carry on with routine proceedings (for example, Oral Questions), the Chair will simply vacate their seat and the Speaker will resume the Chair. Once in place, the Chair reports the status of the committee to the Speaker and requests leave for further time to deliberate. The scheduling of Committees of the Whole is generally conducted by the Speaker in consultation with the House Leaders from each political party (with strong input from the majority leader). Once the Speaker takes the Chair and the Mace is moved back to the Table than the House of Commons resumes its sitting and carries on with proceedings.
If debate is required to be extended for any reason, members may not move such a motion without notice as in the House of Commons. Rather, notice must be given so that the Chair can make arrangements to report the status of the committee to the Speaker of the House of Commons. Any request for debate extension must go through the Speaker of the House of Commons who is responsible for committees of the House.
Voting within the Committee of the Whole is first done by voice. If the Chair hears no objection to a bill or motion than it is deemed passed without opposition. Any member may request a standing vote. The standing vote is done differently than in the House of Commons because a members name is not recorded in divisions. Members are not necessarily in their place, they simply rise where they stand on the division they wish and they are counted out-loud by the Chair. At the end of the count the matter is either affirmed or negatived and the committee moves on the next item of business. Typically the Chair does not vote in Committees of the Whole but may do so in order to break up a tie between the committee in the same fashion as the Speaker in the House of Commons (that is in such a way as to maintain the status quo).
Committees of the Whole are used in the modern Canadian parliament to debate matters of particular importance which may require input from members beyond what would be permitted in the Standing Committee model. The desire to resolve into a Committee of the Whole is generally started by the government or opposition House Leader and is added to the Order Paper as required. Committees of the Whole have also been used to allow the government to make an announcement and allow members of the public to address the Chamber. It is not uncommon to see orders for the House to resolve into a Committee of the Whole in the consideration of controversial legislation or main estimates or to conduct a less formal take-note debate on a particular subject.
Photo credit: Prime Minister Stephen Harper addresses the Committee of the Whole while aboriginal leaders listen on the floor of the House of Commons. Buzzfeed.
In light of my recent post on the subject of the legislative process in contrast to the democratic process in Canada, I thought it would be appropriate for a post on the procedure for dealing with conflicts between the two houses of parliament. Most Canadians, I am sure, would be surprised to learn that there is in fact little formal procedure in the way of dealing with a conflict between the elected House of Commons and the appointed Senate, especially considering the fact that our large cultural influence to the South, the United States of America, actually has constitutional provisions to ease a deadlock between their two houses and executive branch (the President). Let’s examine the process in Canada more in depth.
There are no provisions within any Constitutional document to deal with a deadlock between the Senate and the House of Commons. Within the legislative process, bills which originate in the House of Commons (which can be either public or private in nature) are sent to the Senate for concurrence and approval prior to receiving Royal Assent. Conversely, bills that originate in the Senate are sent to the House of Commons for approval, again, prior to receiving Royal Assent. This process of having each house propose, debate, and approve legislation opens up the possibility for either house to propose amendments to legislation that could reasonably be opposed by one house or the other, by the government of the day or sponsor of the bill itself. All of these situations would create a scenario where each house could be seen to be in conflict with one another and thus create a legislative deadlock. The question then becomes who would “win” between each House and how would the bill proceed to becoming law in Canada?
When a disagreement arises between the House of Commons and the Senate as to the amendments to be made to a bill, there are two possible ways of proceeding: the disagreement may be communicated in a message (this is normally the first step taken), or a conference may take place. (House of Commons Procedure and Practice 2nd Ed)
Messages can be passed between the houses of parliament between the Speakers of each house. Individual rules within each house govern the conduct of these messages, the crux is that they must be read in a timely manner to the members/Senators by the Speaker. It is interesting to note that the conference method cited in the Procedure and Practice manual has fallen into disuse in parliament. In fact, it has not been used since 1947 and only 16 times since 1903. The exact procedure around these conferences has changed since they were formalized in the Standing Orders of the House of Commons in 1903. Prior to 1903, these conferences were considered “closed” in that the House of Commons and the Senate each sent specific delegates who could only voice the concerns of each house without debate or discussion. In 1903, provisions were put into place within the Standing Orders (and Rules of the Senate) which permitted “open” conferences where delegates (referred to formally as managers) would be sent to a conference between the two houses and were allowed to discuss the issues and were empowered to come to a solution. There have been 13 “free” conferences since the provision was introduced but again none since 1947.
Turning to the Standing Orders of the House of Commons, Rule 77 under the heading of Senate amendments, there exists provisions for the Commons side of arrangements for the messaging and a potential conference between the two houses.
In cases in which the Senate disagrees to any amendments made by the House of Commons, or insists upon any amendments to which the House has disagreed, the House is willing to receive the reasons of the Senate for their disagreeing or insisting (as the case may be) by message, without a conference, unless at any time the Senate should desire to communicate the same at a conference. (Standing Orders of the House of Commons, Order 77)
The pre-text of this particular provisions describes a situation where the House of Commons and Senate disagree. However, it could be argued that this provisions does not exactly settle a dispute between the Commons and the Senate but merely provides two avenues for further recourse. The rule goes on the state that any conference between the two houses shall be “free” (as explained above) and that reasons for a conference shall be provided to the Senate (and visa versa in accordance with protocol).
The Rules of the Senate certainly do not offer any additional helpful guidance. Under rule 16 which is reserved for instructions pertaining to messages to and from the Senate, there is a provision regarding the messaging between the House of Commons and the Senate regarding disagreement and protocols regarding the formation of a conference.
When the House of Commons disagrees with amendments proposed by the Senate to a bill that originated in the Commons, and the Senate insists on any of its amendments, the message accompanying the bill to the Commons shall state the reasons. The Senate shall receive by message the reasons for the House of Commons either disagreeing with Senate amendments to bills or insisting on Commons amendments, unless the House of Commons at any time wishes to communicate these reasons at a conference. (Rules of the Senate, Rule 16-3(1)(4))
The Rules of the Senate also contain the same clause as the Standing Orders of the House of Commons which require that any conference between the two houses be conducted in a “free” manner.
The Senate of Canada amends a surprising amount of legislation that originates from the House of Commons. In this role they are fulfilling their mandate articulated by Sir John A. MacDonald in being the “sober second thought” of parliament. The vast majority of amendments are technical in nature (amending legal wording, uniform formatting of the bill, etc) and are accepted without hesitation from the House of Commons. However, there have been historical moments when the House of Commons and the Senate have been at odds over the pith and substance of a particular bill. When Progressive Conservative Prime Minister Brian Mulroney attempted to introduce the Government Sales Tax, it was blocked by the Senate until he took extreme measures granted to him within the constitution to appoint additional Senators (thus allowing him to overcome the partisan deadlock within the Senate Chamber). Recently, we saw an empowered Senate review and propose amendments on the pith and substance of bill C-14 which sought to extend the right of assisted dying to Canadians. It is during these moments that the procedures and processes surrounding the deadlock between houses of parliament become even more important.
Amendments proposed by the Senate on legislation originating in the House of Commons are sent back for debate and approval (or rejection). The debate concerning these amendments is restricted to the scope of the amendment question itself, meaning MPs cannot begin a new debate on the merits of the bill as a whole, for example. Each amendment is voted on individually in the order that it would appear in the bill (reasonably presenting the bill in a logical fashion). The House of Commons can reject or accept all amendments, or can approve and reject some but not all amendments from the Senate. If all amendments are accepted, a message is sent to the Senate to this effect and the bill is scheduled for Royal Assent. If some of the amendments are accepted, but not all, the same message communicating this fact is sent to the Senate, but the Senate is given a chance to reply to this message. If the Senate cannot agree to the provisions than a conference may be formed between the two houses. In the case of C-14, after the bill was read and approved at Third Reading in the House of Commons, the Senate sent amendments back which were then rejected by the House of Commons (being controlled by the majority Liberal government). However, after the rejection of their amended version of the bill, the Senate then approved the final text of the bill, from the House of Commons, essentially backing down and avoiding a protracted deadlock.
If the conference fails, the matter is closed and the bill simply remains on the Order Paper where it dies at the end of the session. During that time, no new bill may be introduced in the House in respect of the same subject matter and containing similar provisions. (House of Commons Procedure and Practice 2nd Ed)
At the end of the day, if the House of Commons and the Senate cannot agree and no movement is made through the options available in a conference, than the bill sits on the Notice Paper for the remainder of the session and is, for all purposes, dead. Furthermore, a legislative void is created because no bill on the same subject can be presented during the session until the similar bill on the Notice Paper is resolved. This was the case during the GST debate for a short period of time prior to the Prime Minister appointing additional Senators and reviving the legislative life of his taxation bill.
On a final note, and related to my last entry, the Senate understands it’s inherent democratic deficit. Because Senators are appointed on the advice of the Prime Minister of the day by the Governor-General collectively they do not possess the same democratic mandate as the government or the House of Commons as a whole. This does not impact their legal authority within the legislative process (as I have alluded to in my opinion piece) but it does inflict soft power over the Senate by the House of Commons. Often during debate, Senators who support the government can be heard calling on fellow Senators to speedily approve matters originating from the Other Place because they have no democratic right to hold up priorities of the duly elected government. And to some extent there is some truth to this statement, however, the Senate does have a legitimate role in the legislative process to review and scrutinize legislation, including government legislation. This is a key component of what little exists to resolved a dispute between the two houses of parliament. It is important to note, that no House can have authority over the other as they are each sovereign entities within parliament in union with the Crown. The executive, being embedded in the House of Commons, does not enjoy a carte blanche over legislation proposed within parliament and therefore the role of the Senate in being that sober second thought often becomes more powerful during periods of majority government rule in the Commons. It is therefore dishonest to simply cast the Senate away as an undemocratic institution with little or no value in the legislative process. On the same token, it could be argued that there exists a statutory nadir with regard to provisions for dealing with a deadlock between the Houses of Parliament which lends itself to relying on the false assumption that the House of Commons has authority over the Senate through their democratic legitimacy.