scc senate reference -- joyal memo

7/27/2019 SCC Senate Reference -- Joyal memo

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Court File No. 35203

IN THE SUPREME COURT OF CANADA

IN THE MATTER OF section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26; and

AND IN THE MATTER OF a Reference by the Governor in Council concerning reform ofthe Senate, as set out in Order in Council P.C. 2013-70, dated February 1, 2013

The Honourable SERGE JOYAL, P.C.Applicant for Intervention

VA

MOTION FOR INTERVENTION BYTHE HONOURABLE SERGE JOYAL, P.C.

(Pursuant to Rule 55 of the Rules of he Supreme Court ofCanada)

The Hon. Serge Joyal, Senator, P.C.250 East BlockParliament of CanadaOttawa, ON, KIA 0A4Tel: (613) 943-0434 - Fax: (613) 943-0441Email: joyals(sen.parl.gc.caAvocat a la retraite, Proposed Intervener

FILED

81 MAR 072013rn


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ORIGINAL TO: THE REGISTRAR, SUPREME COURT OF CANADA

r

COPIES TO:

Robert J. FraterAttorney General of CanadaBank of Canada Building234 Wellington Street, Room 1161Ottawa, OntarioKIA 0H8Telephone: (613) 957-4763FAX: (613) 954-1920E-mail: [email protected] for the Attorney General ofCanadaAND TO:John J. L. Hunter, Q.C.

Christopher M. RuparAttorney General of CanadaBank of Canada B uilding - East Tower234 Wellington Street, Room 1212Ottawa, OntarioKIA 0H8Telephone: (613) 941-2351FAX: (613) 954-1920E-mail: christopher.ruparjustice.gc.caAgent for the Attorney General ofCanada

Hunter Litigation Chambers Law Corporation2100- 1040 Georgia St. W.Vancouver, British ColumbiaV6E 4H1Telephone: (604) 891-2401FAX: (604) 647-4554E-mail: jhunterlitigationchambers.comCounselDaniel JutrasUniversity of McGill3644 PeelMontreal, QuebecH3A 1W9Telephone: (514) 398-6604FAX: (514) 398-4659E-mail: daniel.jutrasmcgill.caCounsel

Henry S. Brown, Q.C.Gowling Lafleur Henderson LLP2600- 160 Elgin StP.O. Box 466, Stn "D"


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Ottawa, OntarioKIP 1C3Telephone: (613) 233-1781FAX: (613) 788-3433E-mail: [email protected] for the Attorney General of New Brunswick, Prince Edward Island, Nova Scotia,and Alberta

Robert E. Houston, Q.C.Burke-Robertson441 MacLaren StreetSuite 200Ottawa, OntarioK2P 2H3Telephone: (613) 566-2058FAX: (613) 235-4430E-mail: [email protected] for the Attorney General of Newfoundland & Labrador

Jean-Yves Bernard, Manse VisocchiBernard, Roy & Associs8.00 - 1, rue Notre-Dame EstMontral, QuebecH2Y 1136Telephone: (514) 393-2336 Ext: 51467FAX: (514) 873-7074E-mail: jybernardjustice.gouv.qc.caCounsel for the Attorney General ofQuebec

Pierre LandryNoel & Associs111, rue ChamplainGatineau, QuebecJ8X 3R1Telephone: (819) 771-7393FAX: (819) 771-5397E-mail: [email protected] for the Attorney General of Quebec

Nancy E. BrownAttorney General of British Columbia1001 Douglas StreetP.O. Box 9280 Stn Prov GovtVictoria, British ColumbiaV8W 9J7Telephone: (250) 356-5597FAX: (250) 356-9154E-mail: nancy.ag.browngov.bc.caCounsel for the Attorney General ofBritish Columbia

Robert E. Houston, Q.C.Burke-Robertson441 MacLaren StreetSuite 200Ottawa, OntarioK2P 2H3Telephone: (613) 566-2058FAX: (613) 235-4430E-mail: [email protected] for the Attorney General of BritishColumbia


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Tab . Document

1. Notice of Motion2. Affidavit3. Memorandum of Argument

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Court File No. 35203IN THE SUPREME COURT OF CANADA

IN THE MATTER OF section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26; and


The Honourable SERGE JOYAL, P.C. Applicant for Intervention

TABLE OF CONTENTS


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Court File No. 35203

IN THE SUPREME COURT OF CANADA

IN THE M ATTER OF section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26; and

AND IN THE MATTER OF a Reference by the Governor in Council concerning reform ofthe Senate, as set out in Order in Council P.C. 2013-70, dated February 1 , 2013


NOTICE OF MOTION TO INTERVENE BYTHE HONOURABLE SERGE JOYAL, P.C.

TAKE NOTICE that the Honourable SERGE JOYAL, P.C., Senator, hereby applies to aJudge of the Court, pursuant to Rule 55, for an order granting him the status of intervener in thisReference, with the right to file a factum and make oral submissions to the Court, or any furtheror other order as the said Judge may deem appropriate.

AND FURTHER TAKE NOTICE that the motion shall be made on the following grounds:


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1.ince 2006, the Government of Canada has introduced eight Bills regarding SenateReform, both in the House of Commons:1) C-43, Senate Appointment Consultations Act (December 13, 2006)2) C-20, Senate Appointment Consultations Act (November 13, 2007)3) C-19, Constitution Act, 2007 (Senate tenure) (November 13, 2007)4) C-10, Constitution Act, 2010 (Senate term limits) (March 29, 2010)5) C-7, Senate Appointment Consultations Act (June 21, 2011)

and in the Senate:6) S-4, An Act to amend the Constitution Act, 1867 (Senate tenure) (May 30, 2006)7) S-7, An Act to amend the Constitution Act, 1867 (Senate term limits) (May 28, 2009)8) S-8, Senatorial Selection A ct (April 27, 2010)

The Government has consistently maintained that these Bills are intra vires the powers ofthe Canadian P arliament, as attested to by the following citations:

The Honourable Peter Van Loan, Leader of the Government in the House ofCommons and Minister for Democratic Reform: "I am pleased to note that [ ... ]the government's interpretation [in] the approach taken in Bill C-43 is legallyvalid without a constitutional amendment." (Debates of the House of Commons,39th Parl., ls Session, vol. 141, n o 137 (April 20, 2007) (emphasis added)

The Honourable Tim Uppal, Minister of State (Democratic Reform): "Let us beclear. Our reforms are reasonable and achievable. They are absolutely withinParliament's authority to enact." (Debates of the House of Commons, 4Vt Parl., 1sSession, vol. 146, n o 24 (September 30, 2011)) (emphasis added)

The Honourable Marjory LeBreton, Leader of the Government in the Senate: "Ido believe that the changes we were proposing in our legislation, which is in theother place, are in fact doable without opening the Constitution." (Debates of theSenate, 41st Parl., 0 Session, vol. 148, no. 101 (September 25, 2006)) (emphasisadded)

2.hese Bills aim to implement the following modifications:1) to reduce the tenure of senators (S-4, C-19, S-7, C-b, C-7)2) to create a process to choose elected senators through national elections (C-43, C-20)


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3) to select senators through provincial elections (C-7, S-8)3. The Applicant questioned the constitutionality of the Government's initiatives from the

moment when the first of these Bills (Bill S-4, An Act to amend the Constitution Act,1867 (Senate tenure)) was debated on June 1, 2006, two days after it was initiallyintroduced in the Senate of Canada. He did so again at Second Reading on February 6,2007, stating that "[i]f the Government of Canada wants to [reduce the tenure of senatorsto eight years, it] has one thing to do, which is to obtain the concurrence of the provinces.That is the way the Constitution functions".

4. The Applicant also presented a similar argument at Second Reading of Bill S-8, theSenatorial Selection Act (Debates of the Senate, 40th Pan., 3rd Session, vol. 147, n 57,October 20, 2010, pp. 1180-89).

5. Despite similar concerns voiced at the time by several provincial governments (Quebec,Newfoundland and Labrador, New Brunswick, Ontario) and by experts in constitutionallaw, the federal Government maintained that the changes sought in these Bills werewithin the exclusive competence of the Canadian Parliament.

6. Concerns about the constitutionality of Bill C-7 led the government of Quebec to referthree questions to the Quebec Court of Appeal on May 1, 2012. The questions relate tothe amendments sought by the federal Government which would affect the exercise ofprerogative powers by the Governor General, the method of selecting .senators, and theessential characteristics and role of the Senate, and would profoundly modify the Senateof Canada.

7. The Applicant was granted the status of intervener by the Quebec Court of Appeal onJanuary 21, 2013.

8. On February 1, 2013, the federal Government referred six questions to the SupremeCourt of Canada (Order in Council P.C. .2013-70) concerning proposed amendments tothe Constitution Acts of 1867 and 1982 relating to: term limits for senators (Question 1);


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the electoral selection of senators (Questions 2 and 3); property qualifications for senators(Question 4); and the abolition of the Senate (Questions 5 and 6).

9. If the constitutionality of these Senate reform proposals were to be confirmed by. theCourt, the nature of the Senate, as originally defined by the Founders of Confederation inthe Constitution Act, 1867 and subsequently- sustained in the Constitution Act, 1982,would b e substantially modified.

10. If Questions 2 and 3 receive a positive response by this Court, the Senate wouldeffectively be transformed from a nominative institution to one composed of electedmemb ers, i.e. holding an electoral mandate.

11. If this were to happen, the exercise of senatorial powers recognised in our Constitution asequal to those held by the House of Commons (except for money and certainconstitutional bills) would take place in a different institutional context, a process whichmight create unintended consequences in the relationship between the two Houses ofParliament, and might ultimately give rise to serious conflict or even deadlock between-them.

12. Furthermore, Question] and its sub-questions aiming to considerably reduce term limitsfor senators (by replacing the age limit of seventy-five years with set term limits linked toa fixed mandate) would significantly change the role of the Senate by substantiallyreducing the institutional memory which allows it to bring the benefit of long-termperspective in its review of legislation. Moreover, the renewability of term limits wouldgive the Prime M inister more power o ver the Senate, thereby affecting its independence.

13. One of the sub-questions to Question 1 (g) aims to retroactively impose a fixed mandateon all senators who were appointed before October 14, 2008, which would affect 52senators, or half of the current makeup of the Senate. This would seriously modify thecharacteristic of continuity that characterizes this House of Parliament, where thereplacement of members takes place in a constant and gradual manner, incontradistinction to the abrupt process of change which general elections have on thecomposition of the House of Commons.


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14. Finally, the abolition of the Senate would transform our federal Parliament into aunicameral legislature, which would essentially eliminate the federal principle that hadbeen intended by the Founders of Confederation, and which is enshrined in the Senate.Such a modification wou ld surely lead to further unexpected consequences as w ell.

15. Having been involved in the study and debate of the constitutionality of the variousmodifications to the Senate sought by the Government, the Applicant has a longstandinginterest in each of the questions submitted to this Court. Moreover, the answers providedby this Court could seriously affect the Senate as an institution, and could additionallyaffect the Applicant as well, given that he is active in his daily work within the Institutionas a legislator.

16. In addition to having served for fifteen years in the Senate, the Applicant was a memberof the House of Commons for ten years (1974-84), during which time he was co-chair ofthe Special Joint Committee of the Senate and House of Commons on the Constitution ofCanada (1980-81), and was subsequently a member of Cabinet as Minister of State(1981) and Secretary of State (1982-1984). The Applicant thus brings extensiveparliamentary and legal experience to the study of these questions by the Court.

17. The Applicant wishes to make a submission to the foregoing effect. He believes that if heis granted the status of intervener, his submissions will, in accordance with Rule 57(2)(b),be "useful to the Court and different from those of the other parties" because he willbring a unique perspective to this case, one emanating from the House of Parliamentdirectly concerned with each and every question raised in the Reference. The Applicantapproaches the matter from the distinctive vantage point of a 'parliamentarian who hasserved in the Senate for more than fifteen years, and who has voiced seriousconstitutional concerns on the specific issues raised in this Reference.

18. The Applicant would be prejudiced if his intervention were denied because the uniqueperspective he, as a Senator, brings to the question of Senate Reform would in that casebe lost to the argument, with the possible consequence that the information andknowledge gathered from his legislative experience in the Senate would not be brought to


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the attention of the Supreme Court in weighing the arguments expressed by the otherparties.

In support of this motion is filed the Affidavit of the Applicant, and a Memorandum ofArgument.

DATED AT Ottawa, Ontario, this 71h day of March, 2013.

T'Hon. Serge Joyat, Senator, P.C.250 East BlockParliament of CanadaOttawa, ON, K1A 0A4Tel: (613) 943-0434 - Fax: (613) 943-0441Email: ioyals(sen.parl.gc.caAvocat a la retrite, Proposed Intervener

ORIGINAL TO: THE REGISTRAR, SUPREME COURT OF CANADACOPIES TO:Robert J. FraterAttorney General of CanadaBank of Canada Building234 Wellington Street, Room 1161Ottawa, OntarioK1A 0H8Telephone: (613) 957-4763FAX: (613) 954-1920E-mail: robert.fraterjustice.gc.caCounsel for the Attorney General ofCanada

Christopher M. RuparAttorney General of CanadaBank of Canada Building - East Tower234 Wellington Street, Room 1212Ottawa, OntarioKIAOH8Telephone: (613) 941-2351FAX: (613) 54-1920E-mail: christopher.ruparjustice.gc.caAgent for the Attorney General ofCanada


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AND TO:John J. L. Hunter, Q.C.Hunter Litigation Chambers Law Corporation2100 - 1040 Georgia St. W.Vancouver, British ColumbiaV6E4H1Telephone: (604) 891-2401FAX: (604) 647-4554E-mail: [email protected] JutrasUniversity of McGill3644 PeelMontreal, QuebecH3A 1W9Telephone: (514) 398-6604FAX: (514) 398-4659E-mail: daniel .jutrasmcgi1l .caCounsel

Henry S. Brown, Q.C.Gowling Lafleur Henderson LLP2600 - 160 Elgin StP.O. Box 466, Stn "D"Ottawa, OntarioKIP 1C3Telephone: (613) 233-1781FAX: (613) 788-3433E-mail: henry.browngowlings.comAgent for the Attorney General of New Brunswick, Prince Edward Island, Nova Scotia,and AlbertaRobert E. Houston, Q.C.Burke-Robertson441 MacLaren StreetSuite 200Ottawa, Ontario


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K2P2H3Telephone: (613) 566-2058FAX: (613) 235-4430E-mail: [email protected] for the Attorney General of New foundland & Labrador

Jean-Yves Bernard, Manse VisocchiBernard, Roy & A ssocis8.00 - 1, rue Notre-Dame EstMontral, QuebecH2Y 1B6Telephone: (514) 393-2336 Ext: 51467FAX: (514) 873-7074E-mail: jybernardjustice.gouv.qc.caCounsel for the Attorney General ofQuebec

Pierre LandryNoel & A ssocis111, rue Cham plainGatineau, QuebecJ8X 3R1Telephone: (819) 771-7393FAX: (819) 771-5397E-mail: p.landrynoelassocies.comAgent for the Attorney General of Qu ebec

Nancy E. BrownAttorney General of British Columbia1001 D ouglas StreetP.O. Box 9280 Stn Prov GovtVictoria, British ColumbiaV8W9J7Telephone: (250) 356-5597FAX: (250) 356-9154E-mail: nancy.ag.browngov.bc.caCounsel for the Attorney General ofBritish Co lumbia

Robert E. Houston, Q.C.Burke-Robertson441 MacL aren StreetSuite 200Ottawa, OntarioK2P 2143Telephone: (613) 566-2058FAX: (613) 235-4430E-mail: [email protected] for the A ttorney General of BritishColumbia


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Court File No. 35203IN THE SUPREME COURT OF CANADA




AFFIDAVIT OFTHE HONOURABLE SERGE JOYAL, P.C.

I, Serge Joyal, of the City of Montreal, Quebec, Se nator, hereby make oath an d say:

A.eponent1.have been a member of the Senate of Canada since 1997. Among my duties in thatcapacity, I have served continuously on the Standing Senate Committee on Legal andConstitutional Affairs, and on the Standing Senate Committee on Rules, Procedures andthe Rights of Parliament from the time of my appointment. I have also served as Chair orVice-Chair of the Standing Committee on Conflict of Interest for Senators since itsinception in April 2005, and was personally involved in the drafting of the Conflict ofInterest Code for Senators, adopted in May 2005.

2.rom 1974 to 1984, I was a Member of the House of Commons of Canada. During mytime as a Member of Parliament, I was Co-Chair of the Special Joint Committee of the


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Senate and House of Commons on the Constitution of Canada (1980-8 1), and served asParliamentary Secretary to the President of the Treasury Board (1980-8 1). I was also aMember of the federal Cabinet, first as Minister of State (1981) and subsequently asSecretary of State (1982-84). As Minister of State, I had special responsibilities related tothe events that culminated in the enactment of the Canada Act, 1982 by the Parliament ofthe United Kingdom, which brought about the patriation of the Constitution of Canada,the adoption of the Canadian Charter of Rights and Freedoms, as well as the amendingformula and other provisions contained in the Constitution Act, 1982.

3. Throughout both my political and professional career I have maintained a keen interest inconstitutional matters. I hold an LL.L. degree from the Faculty of Law of the Universitde Montral (1968). I was subsequently awarded a post-graduate degree inAdministrative Law (LL.M., Sheffield, 1970), and studied Constitutional Law at theLondon School of Economics and Political Science (London, 1971).

4. I was called to the Bar of Quebec in 1969 and remained a member until 2010. I havesince retained the status of"avocat a la retraite".

5. In 2004, I was granted the status of intervener by the Supreme Court in the case House ofCommons, et al. v. Satnam Vaid, et al. and the Canadian Human Rights Commission, adecision which involved section 18 of the Constitution Act, 1867 in relation to theprivileges of Parliament.

6. I have contributed several publications involving questions of constitutional law,including:

1) The preface of Michael D. Behiels' book La Francophonie canadienne,Renouveau constitutionnel et gouvernance scolaire (Presses de l'Universitd'Ottawa, 2005, pp. ix-xiii);

2) "The Vaid case and the protection of parliamentary employees against humanrights discrimination", Canadian Parliamentary Review (Vol. 28, No. 4,December 2005);


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3) "The Crown and prime ministerial government or the slow withering of themonarchical institution", chapter 15 in Jennifer Smith and D. Michael Jackson,eds., The Evolving Canadian Crown, Institute of Intergovernmental Relations,School of Policy Studies (Montreal & Kingston, MQ UP, 2012, pp . 219-237).

B.eponent's interest in the study of the Senate, and of the constitutionality of itsreform7.n 2003 . 1 edited Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen's University Press, Montreal, 2003 (reprinted in 2005)), a non-partisan bookpublished in both official languages which, among others, covers issues related to thereform of the Senate.

8.worked closely with the authors of each of the chapters in Protecting CanadianDemocracy to insure proper coordination and coherence. I also wrote the book'sintroduction and conclusion, and oversaw all of the statistical analyses and research thatwere conducted to produce the figures and charts comparing the Senate and the House ofComm ons that are published in the Appendix to the book.9.mong the issues examined by the various contributors were:1) the tenure of senators;2) the qualifications of senators;3) the election of senators;4) the abolition of the Senate.10.any of the institutional elements related to the Senate raised in the six questions

referred to the Supreme Court on February 1, 2013 (Order in Council P.C. 2013-70) havebeen the object of serious study by the eight teamed Canadian scholars, specialized inconstitutional law and political science who contributed chapters to Protecting CanadianDemocracy.

C


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11.ince 2006, the Government has introduced eight Bills in relation to the reform of theSenate:1) C-43, Senate Appointment Consultations Act (December 13, 2006)2) S-4, An Act to amend the Constitution Act, 1867 (Senate tenure) (May 30, 2006)3) C-20, Senate Appointment Consultations Act (November 13, 2007)4) C-19, Constitution Act, 2007 (Senate tenure) (November 13, 2007)5) S-7, An Act to amen d the Constitution Act, 1867 (Senate term limits) (May 28, 2009)6) S-8, Senatorial Selection Act (April 27, 2010)7) C-tO, Constitution Act, 2010 (Senate term lim its) (March 29, 20 10)8) C-7, Senate Appointment Consultations Act (June 21, 2011)

None of these Bills went beyond Report stage after Second Reading, and all eventuallydied on the Order Paper.

12.rom the very beginning I questioned the constitutionality of the changes proposed inthese Bills relating to the tenure of Senators in Bill S-4, An Act to am end the ConstitutionAct, 1867 (Senate tenure), in speeches at the opening of debate on Second Reading onJune 1, 2006, and again, at length, during Second Reading in the Chamber on February 6,2007.

13.also raised the question of the constitutionality of Bill S-4 during Legal andConstitutional Affairs Committee meetings studying the Bill with expert witnesses whotestified on the capacity of the federal Parliament, acting alone, to adopt such legislation.14.n the final Report of the Legal and Constitutional Affairs Committee on Bill S-4 (tabledin the Senate on June 12, 2007), the majority of Committee members concluded thatuncertainties regarding the constitutionality of the Bill were sufficient to justify that theGovernment of Canada refer Bill S-4 to the Supreme Court for advice. The Reportrecommended that the Bill, "as amended, not be proceeded with at third reading untilsuch time as the Supreme Court of Canada has ruled with respect to its constitutionality".How ever, the Government of Canada refused to accept this recommendation.


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15. When the Government introduced Bill S-8, An Act respecting the selection of senators(through national elections), I questioned the constitutionality of its provisions in aspeech given at Second Reading in the Senate Chamber on October 20, 2010.

16. After the Government of Quebec referred three questions relating to the constitutionalityof Bill C-7, An Act respecting the selection of senators and amending the ConstitutionAct, 1867 in respect of Sen ate term limits (short title: Senate Reform Act) to the Court ofAppeal of Quebec on April 4, 2012 (Executive Order in Council number 346-2012), Ipetitioned the Court pursuant to the conditions established by the Chief Justice of theCourt on August 15, 2012 to seek the status of intervener.

17. I was granted the status of intervener in that Reference by the Court, with the agreementof the Attorney General of Canada and the Attorney General of Quebec, on January 22,2013 (Minutes of a conference meeting held under the presidency of Chief Justice NicoleDuval Hesler, J.C.Q.).

C.eponents' alternative perspective regarding the constitutionality of the reform ofthe Senate18. The Deponent would like to assist this Court in understanding the overall context and the

practical implications surrounding the proposed changes in the Senate mentioned in thesix questions referred to the Court. Such, assistance would be provided from theperspective of a Senator who has continually been active in the study and debate of theconstitutional nature of reform proposals to the Senate, and who has substantialexperience regarding the function and operation of the Senate as a legislative chamber.

19. Moreover, the Deponent has also had the benefit of sitting in the House of Commons for10 years, where he has undertaken various parliamentary and cabinet responsibilities, andis thus in a distinct position to understand the nature of each House and their differinginstitutional principles. As such, he can express a point of view that is unique among


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those that the Supreme Court will hear from the various parties and Interveners in theReference case mentioned above.

D.eponent's Concerns20. I believe that if I am granted the status of intervener in this Reference, my submission

will, in accordance with Supreme Court of Canada Rule 57(2)(b), be "useful to the Courtand different from those of the other parties" in that it will bring a specific senatorialperspective on the important issue of Senate Reform. Such perspective differs profoundlyfrom the contributions brought by the other parties to the study of the six issues referredto the Court, since I approach the matter from the distinct vantage point of aparliamentarian with more than twenty-five years of legislative experience within bothHouses.

21. 'I would be prejudiced, within the meaning of Rule 57(2)(b) if my intervention weredenied, because the unique perspective I, as a Senator, bring to the question of Senatereform would consequently be lost to the argument, with the possible consequence thatthis Court would pronounce on the constitutionality of reform proposals in a manner thatI would, with respect, consider detrimental both to the Senate as an institution and to mywork therein, as a Senator.

22. For the aforementioned reasons, I seek leave to intervene in this Reference in order topresent to this Court, from the perspective of an active member of the House ofParliament which I have the honour to serve, legal arguments to assist the Court ingaining a comprehensive perspective on all of the implications underlying the proposalsof reform of the Senate contained in the six questions referred to this Court.

23. I make this Affidavit in support of the Application to Intervene. The statements containedwithin are based on my personal knowledge, except where explicitly or implicitlyindicated, and are based on information which I consider to be accurate and which Ibelieve to be genuine.


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SWO RN before me at the Cityof Ottawa, in the Province of On tario,this 7th day of March, 2013

Honourableoyal, P.C.15


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Court File No. 35203IN THE SUPREME COURT OF CANA DA


AND IN TH E M ATTER OF a Reference by the Governor in Council concerning reform ofthe Senate, as set out in Order in Council P.C. 2013-70, dated February 1, 2013

The Honourable SERGE JOY AL, P. C. Applicant for Intervention

MEMORANDUM OF ARGUMENT OFTHE HONOUR ABLE SERGE JOYAL, P. C.

Part I: FACTS

1.he Attorney General of Canada claims that the Parliament of Canada, by virtue ofsection 44 of the Constitution Act, 1982, is competent:1) to substantially reduce the tenure of senators (section 29 (2) of the Constitution Act,1867), and2) to provide for elections, whether nationally or provincially/territorially, for theselection of senatorial candidates before the summoning of Senators, as per section24 of the Constitution Act, 1867.

2.n the last seven years, the federal Government has introduced eight different Bills inboth the House of Commons:


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1) C-43, Senate Appointment Consultations Act (December 13, 2006)2) C-20, Senate Appointment Consultations Act (November 13, 2007)3) C-19, Constitution Act, 2007 (Senate tenure) (November 13, 2007)4) C-10, Constitution Act, 2010 (Senate term limits) (March 29, 2010)5) C-7, Senate Appointment Consultations Act (June 21, 2011)

and in the Senate:6) S-4, An Act to amend the Constitution Act, 1867 (Senate tenure) (May 30, 2006)7) S-7, An Act to amend the Constitution Act, 1867 (Senate term limits) (May 28, 2009)8) S-8, Senatorial Selection Act (April 27, 2010)

with the two objectives of amendm ent as stated above, on the assumption that these Billswere within the jurisdiction of the federal Parliament acting alone.

3. The App licant, the Honourable Serge Joyal, has been a member of the Senate of Canadasince 1997. He has served continuously on the Standing Senate Comm ittee on Legal andConstitutional Affairs, and on the Standing Senate Comm ittee on Rules, Procedures andthe Rights of Parliament from the time of his appointment. During the debate and studyof Bills S-4 and S-8, whether in the Senate Chamber or in the Legal and ConstitutionalAffairs Committee, the Applicant has been among the first members to question theconstitutionality of the Bills and to explain on which aspects they are ultra vires thepowers of the federal parliament acting alone in the adoption of the proposedamendments to the Constitution of Canada.

4. As the Government of the Province of Quebec referred three questions to its Court ofAppeal on M ay 1, 2012 (Executive Order no. 346-2012), which were all centred on theconstitutionality of Bill C-7, the most recent Senate Reform Bill introduced in the Houseof Commons on June 21, 2011 which seeks to reduce the tenure of Senators and toprovide for the electoral selection of senatorial candidates, the Applicant petitioned theCourt and was granted the status of intervener on January 21, 2013, in order to present


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the legal grounds on which these amendments are ultra vires the powers of the federalGovernment.

5. The Applicant has studied law in Canada, in the United Kingdom and in France. He hasengaged in post-graduate studies in constitutional law, and has taken a major interest inCanadian co nstitutional matters throughout his public career.

6. In the Applicant's respectful submission, the Government's contention that theParliament of Canada is competent to unilaterally adopt the amendments on the tenure ofSenators and the electoral selection of senatorial candidates is incorrect. The Applicant'sposition on this subject is outlined in the Notice of Motion to Intervene, and will befurther developed below. He respectfully submits that it will be "useful to the Court"(Rule 57 (2)(b) of the Rules of the Supreme Court of Canada if he, as intervener, presentsthis position to the Court.

7. With respect to the other requirements of Rule 57, the Applicant has an interest in thisReference because its outcome will affect both the Senate as an institution and his workas a Senator. The Applicant is concerned that if Parliament can unilaterally change theessential characteristics of the institution and its composition, as originally provided forin the Constitution Act, 1867 and more recently in the Constitution Act, 1982, the federalprinciple enshrined in the design of the institution by the Founders of Confederation willbe seriously affected.

8. The perspective which the Applicant brings to the question of amendments to the Senateraised by this Reference is substantially different from that of the Attorney General ofCanada. This leads the Applicant to conclude, as indicated, that the federal Government'spretentions are incorrect. Although he supports the position of the Respondent (theAttorney General of Quebec) in this case, his perspective as a federal parliamentariandiffers from that of the Respondent. The Applicant believes that he would be prejudicedif his intervention in this Reference were denied, and that his unique perspective as aSenator would thereby be lost to the argument. A possible consequence of this would bethe adoption of amendments to the Senate which would be detrimental to the institution,


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3) What costs order should be m ade? The A pplicant seeks no costs and respectfullyasks that no costs be awarded against him .

11. Only the first of these Questions will be addressed in the Argument part of thisMemorandum. The Applicant's position as pertaining to the other Questions issufficiently set out in the Notice of M otion to Intervene, the Affidavit, and the latter partsof this Memorandum.

Part III: ARGUMENT

Summary

12. The Applicant maintains that the answers to the six Questions included in the Order ofReference should hereafter be stated as follows:

1) Section 44 of the Constitution Act, 1982 does not allow the Parliament of Canadato reduce the terms of senators to .a point where it would affect the independentcharacter of the Senate, both as an institution and in its role of reviewinglegislation emanating from the House of C omm ons with "sober second thought".

2) The election of senatorial candidates was originally contemplated by the Foundersof Confederation and consciously set aside with the express purpose of avoidingconflict with the elected House of C omm ons. Their position was derived from .thedirect experience of having had two former elected houses, the LegislativeCouncil and the Legislative Assembly of United Canada, prior to 1867. Theelection of senatorial candidates would be an amendment to "the Office of theQueen" which holds and exercises the Royal Prerogative of appointment, asdefined in section 41 (a) of the Constitution Act, 1982. It would also be anamend ment "in relation to [...J the method o f selecting senators",, as per section 42(l)(b) of the Constitution Act, 1982, and as such is subject to the generalprocedure for amending the Constitution of Canada enacted in section 38 (l)(a)and (b) of the Constitution Act, 1982 which requires the consent of the Parliament


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of Canada and the Legislative Assemblies of seven provinces representing "atleast fifty percent of the population of all the provinces".

3) The property qualifications for senators as stipulated in subsections (3) and (4) ofthe Constitution Act, 1867 were included for a specific purpose: namely, toestablish a formal link between the senator and the region he or she was called torepresent in the Senate, in order to confirm the senator's interest in public affairsand to testify to the senator's commitment to the general interests of theircommunity. These objectives could be achieved without impairing the essentialcharacteristics of the Senate. However, the property qualifications for senators inthe Electoral Division of Quebec requires the Province's concurrence inimplementing such a modification, as per section 23 (6) of the Constitution Act,1867.

4) The abolition of the Senate as one of the two Houses of Parliament providingconsent for the enactment of any and all legislation would be .a fundamentalchange to the Constitution of Canada. This would, among others, affect the"Office of the Queen" and of the Governor General" (as per section 41 (a) of theConstitution Act, 1982), the representation of a province in the House ofCommons (as per section 41 (b) of the Constitution Act, 1982), the generalprocedure for amending the Constitution of Canada (as per sections 38 and 41(a)of the Constitution A ct, 1982), and most significantly, the legislative powers ofParliament (as per sections 17 and 91 of the Constitution Act, 1867, and as per itsvery Preamble, which provides for "a Constitution similar in Principle to that ofthe United Kingdom", where. the principle of the "Crown in Parliament" is at thevery heart of our system of democratic government since the implementation of.the Bill of Rights of 1689).

The complem entary role of each House of Parliamentin our federal system of governm ent

13.rom its foundation, the House of Commons was to be the elected House of Parliament.The principle of representation by population (Rep by Pop) would be its fundamental


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character. The Constitution provides Tor of an electoral mandate of no more than fiveyears for its Members (section 50 of the Constitution Act, 1867 and section 4 (1) of theConstitution Act, 1982), which was even further constrained by Bill C-16, An Act toAmend the Canada Elections Act (November 2006).

14. The 'House of Commons embodies the democratic principle: the Government of the dayremains responsible and maintains the confidence of its mem bers, failing wh ich it cannotcontinue to advise the Qu een as per sections 9 and 11 of the Constitution Act, 1867, a rolethat is unique to this Chamber. The underlying reality, structure, role and function of theHouse of Commons stem from this very principle, which is enshrined at the heart of itsvery existence.

15. When created, the Senate was defined by its framers as a unique and coherent legislativeHouse of Parliament, one which was meant to be characterised by principles that weredistinct, separate and independent from the House of Commons.

16. The Senate was conceived to be the chamber that embodied the federal principle in theCanadian parliamentary structure on a regional basis, without regard to any determinativefactor based on population.

17. The main characteristics of the Upper C hamber of Parliament have been identified by theSupreme Co urt of Canada in Re. Authority of Parliament in relation to the Upper House,[1980] 1 S.C.R. 5 (hereafter referred to as the Senate Reference (1980)), andsubsequently, in the Reference re Secession of Quebec, (1998) 2 S.C.R. 217 (hereafterreferred to as the Secession Reference (1998)).

18. The Senate is not the responsible House of Parliament. The Government remainsaccountable to the Senate but its mandate to govern is not determined by the Senate, asper the principles underlined in the Preamble of the Constitution Act, 1867.

19. The Senate is essentially a "house of review", one which brings an independentperspective to the study of legislation that is distinct from the approach usually taken bythe House of Commons, where the democratic element, as determined by the turnout of


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general elections, is paramount. In other words, the House of Commons represents thevoice of the people, whereas the Senate provides "dispassionate analysis" in the review oflegislation: this is how the Fo unders of Co nfederation envisioned that the two institutionswould function.

Tenure on the independence of the Senate as a legislative chamber20. The length of tenure of'Senators as established in section 29 (2) of the Constitution Act,

1867 is a basic element which is intimately linked to the capacity of senators to express"sober second thought" that is independent from the House of Commons and, to anextent, from the Executive. As an autonomous body, the Senate is neither under thecontrol of the Government nor of the House of Commons. Indeed, the Founders ofConfederation designed the Senate with a number of safeguards specifically conceived toavoid any substantial threat to its independence.

21. One of those defining safeguards was the tenure of persons summoned to the Senate. Theframework of Senate tenure operating from thirty to seventy-five years of age wasestablished in 1965 by an A ct of Parliament (section 29 (2) of the Constitution Act, 1867,replacing the original life tenure as per section 29 (1) of the Constitution Act, 1867), andconfirmed by the Supreme Court in the Senate Reference (1980).

22. The Supreme Court has established criteria that frame the powers of Parliament to reducetenure in the Senate Reference (1980) (p. 76). The Court stated that "[a]t some point, areduction of the term of office might impair the functioning of the Senate in providingwhat Sir John A. Macdonald described as 'the sober second thought in legislation".

23. Thus, Question 1 and all of its subsections which were referred to this Court might beanswered by weighing the information and facts mentioned below:

1) first, an analysis of the average term of service for members of the House ofCommons and of the Senate over the course of a reasonable period of time (e.g.over fifty years);


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2) second, how the reduction of tenure for senators, and a possible renewable term,would in fact increase the control over the Senate by the P rime M inister, the veryperson entitled to recommend persons to be summoned to the Senate to theGovernor General (section 24 and 26 of the Constitution Act, 1867);

3) third, the impact of the proposed changes on the essential role of the Senate,where institutional memory and long-term perspective are essential requisites inthe review of legislation;

4) fourth, the influence that the proposed amendments would have on thedemographics of the Senate, considering that the vast majority of Senators areappointed at an age where their career ambitions have already been importantlysatisfied, and that their tenure coincides with the last span of their active lives.This ensures that they are not influenced by considerations of alternative activitiesupon their retirement from the Senate at the age of seventy-five;

5) fifth, how the long-term experience of Senators leads them to fully exercise theirresponsibilities in the organisation of legislative work in the chamber, as criticswithin the legislative comm ittees, and in their overall investigations.

24. These arguments will be presented to this Court with the support of credible academicresearch by scholars and experts who have analysed these issues.

The selection of senatorial candidatesthrough national or provincial/territorial elections

25. One of the essential characteristics of the Senate as originally designed by the Foundersof Confederation is that it is a nominative chamber. The Supreme Court quoted thePreamble of the Constitution A ct, 1867 in the Senate Reference (1980) to underline howCanada was meant to have "a constitution similar in principle to that of the UnitedKingdom", where the Upper House is appointed by the exercise of the Royal Prerogativeas per sections 24 and 26 of the Constitution Act, 1867.

26.he intent of all eight of the Bills introduced since 2006 in the, House of Com mons and inthe Senate, as stated in their respective Preambles, is to introduce a democratic


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component in the institution w hich, as already indicated, was deliberately excluded fromthe Senate as of its foundation on the basis of principle.

27.onetheless, the Ministers sponsoring these Bills have repeatedly mentioned this veryobjective in their opening speeches in the House of Commons and in the Senate:

The Honourable Peter Van Loan, Leader of the Government in the House ofCom mons and M inister for Democratic Reform: "We had told Canadians that ourgovernment w ould be m obilizing and d emocratizing the Senate so that they couldhave a say in the appointment of their senators. [ ... ] Consulting the Canadianpublic on Senate appointments will help to boost the Senate's legitimacy in theeyes of Canadians by transforming it into a more modern, more democratic, andmore accountable institution that reflects the core values of Canadians." (Debatesof the House of Commons, 391h Parl., 1st Session, vol. 141, no 137 (April 20,2007), p. 8477-8478) (emphasis added)The Honourable Steven Fletcher, Minister of State (Democratic Reform): "OurGovern ment believes that setting term limits is an important first step inincreasing the democratic legitimacy of the Senate." (News Release of theGovernment of Canada, Harper G overnment Drives Senate Reform Agenda,Democratic Reform, Ottawa, March 29, 2010) (emphasis added)The Honourable M arjory LeBreton, Leader of the Government in the Senate:"The Senatorial Selection A ct would provide Canadians w ith [the] opportunity[...] to establish a dem ocratic process where Senate nominees are chosen directlyby the voters of the relevant province or territory [ ... W]e are simply offering[them] a helping hand [ ... ] in enhancing the democratic legitimacy of our S enate."(Debates of the Senate, 40 Parl., 3rd Session, vol. 147, no 94 (March 10, 2011), p.2012-2013) (emphasis added)

The Honourable Tim Uppal, Minister of State (Democratic Reform): "[IJiSenate lacks any essen tial democratic characteristics. Its effectiveness andlegitimacy suffers from the dem ocratic deficit. [ ... ] Our go vernmen t does notbelieve that the current situation is acceptable in a modern, representativedemo cracy [.. . T]he status quo in the Senate [,] where senators are appointed tolong terms without any democratic mandate [ ' is unacceptable]. [T]he act providesa suggested framewo rk to provinces and territories that wish to establish ademocratic consultation process to give C anadians a say in who represents themin the Senate." (Debates of the House of Commons, 41st Par!., VtSession, vol. 146,n 24 (September 30, 2011), p. 1706) (emphasis added)

28.he intent of Bill -7 and it predecessors is to add a defining element to the Senate thatwas purposefully set aside by the Founders of Confederation with the express intent to


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avoid the stalemate which they h ad experienced between the former Legislative Counciland the Legislative Assembly of United Canada.

29. To 'avoid the inherent risk of two elected assemblies with similar legislative powers, SirJohn A. Macdonald defended the objective that an appointed Upper House would notstand against the will of the popular assem bly.

30. The selection of senatorial candidates through national or provincial/territorial electionswould introduce the democratic principle into the Senate which, as mentioned, waspurposefully set aside by the Founders of C onfederation. This change in the nature of theSenate would eliminate one of its defining characteristics, and would require aconstitutional change through the general amending formula identified in section 38 (1)of the Constitution Act, 1982. ,Such an amendment is ultra vires the powers of the federalParliament set out in section 44 of the Constitution Act, 1982.

31. The democratic principle involved in the holding of valid general elections entails thatthe elected candidates be recognised as "the" senators. These candidates, for whom voterswill have cast their ballots, will have undertaken public commitments, raised money forcampaigns and finally, been proclaimed w inners of the elections. This Court has preciselydefined the implications involved in implementing the democratic principle and theobligations to give "considerable weight" and effect to results from valid elections in theSecession Reference (1998) (par. 87-88).

32. As the Supreme Court has stated in. the case, of Ward v. Canad a (Attorney General),[2002] 1 S.C.R. 569, 2002 SCC 17, it will look beyond the qualifications of a scheme todetermine if in fact it is a "colourable" system. There is very little ambiguity with Bill C-7: the Ministers sponsoring the Bill (and its predecessors) and the Prime Minister himselfhave all declared that they will be bound by the elections of senatorial candidates, asillustrated by the Prime Minister's appointment of three senatorial candidates who wereelected by virtue of the Alberta Senatorial Selection Act of 1987. Qualifying suchelections as merely "consultative" masks neither the principle of democracy inherent insenatorial elections, nor the intention of the sponsors of these Bills.


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33. Parliament alone cannot legislate to introduce the democratic principle into the Senate.More to the point, even if considering a hypothetical situation where Parliament w ouldpossess the powers to do so, this Court has already determined that the judiciary cannotauthorise the provinces or territories to exercise such powers through delegation. Anabundance of jurisprudence from this Court confirms this principle (Attorney General ofNova Scotia v. Attorney General of Canada and Lord Nelson Hotel Co. Ltd., [1951]S.C.R. 31; The Citizens Insurance Company of Canada and The Queen InsuranceCompany v P arsons (Canada) [1881] UKPC 49). The provinces have no competence tolegislate for the election of senatorial candidates since no such heads of power areenumerated in section 92 of the Constitution Act, 1867.

Changes to the property qualifications for senators34 . It is respectfully submitted that the property qualifications for senators, as set out in

subsections 23(3) and (4) of the Constitution Act, 1867, could be repealed by Parliamentalone in certain circumstances without impairing the essential characteristics of theSenate. However, the existence of Electoral Divisions in the Province of Quebec and therelationship of the property and residence qualifications to the Divisions give rise tocertain limitations.

35 . While often confused with each other, the property qu alifications for senators are distinctin nature from the residence qualifications for senators established in subsection 23(5) ofthe Constitution Act, 1867. Merely owning a piece of land does not satisfy the residencerequirement.

36. The property qualifications were originally intended to substantiate the p ast achievementsof a person as proof of reliability in the discharge of a public function. There arealternative ways to maintain such standards that are more pertinent in a contemporarycontext.

37. Paragraph 42(1 )(c) of the Constitution Act, 1982 requires the use of the general amendingformula to am end the residence qualifications of senators, but section 42 contains no such


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requirement in. respect of amending the property qualifications of senators. Thisdifference in treatment reflects both the ongoing constitutional importance of theresidence requirement and the disappearing importance of the property requirements asperceived in the year 1982. The Constitution Act, 1982 confers rights on the Provinceswith respect to protecting the residence qualifications that they do not need with respectto the property qualifications.

38. In the case of Quebec, subsection 23(6) of the Constitution Act, 1867 states that a senator:"shall have his Real Property Qualification in the Electoral Division for which he isappointed, or shall be resident in that Division." The Confederation Debates shed light onthe original intent for this special requirement in the case of Quebec. Today, it can besupposed that many if not most Quebec senators meet this supplemental qualification byowning property in their division rather than by residing there. This raises the issue ofwhether Parliament alone could repeal the property qualification across Canada,including for Quebec, without also repealing subsection 23(6). If Parliament were to doso, there would be a unique, harsh and undue impact on Quebec senators who would notonly have to reside in their - province but who would have to move their residence to theirElectoral Division to remain qualified. This consequence raises the issue of whether theconcurrence of the Legislative Assembly of Quebec, using the section 43 amendingformula, would not be needed in such circumstances. In conclusion, it is submitted that,while Parliament alone has the ability to repeal the property qualifications for senatorsacross Canada and subsection 23(6) for Quebec senators .together as a package, theSenate and the House of Commons might need the concurrence of the LegislativeAssembly of Quebec to repeal the property qualifications across Canada alone.

The abolition of the Senate39. Abolishing the Senate of Canada would be equivalent to the extinction of the federal

principle in the Parliament of Canada. Furthermore, such a fundamental change callsupon the Unanimity Rule provided for in section 41(a), (b) and (c) of the ConstitutionAct, 1982.


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40. The abolition of the Senate would reduce Parliament to a unicameral legislaturecomposed only of the Crown and of the House of Commons. It would also effectivelydecrease the voices of regions and minorities in the legislative process. This would betantamount to rewriting the entire constitutional arrangement of our system ofgovernment, thereby calling upon the definition of alternative protections that only theconstitutive assemblies of all of the Provinces and of the federal Parliament could try toredefine and agree upon.

41. Such radical changes certainly fall under the Unanimity Rule of section 41(e) of theConstitution Act, 1982. Clearly, the intention of the framers of the Constitution Act, 1982was to ensure that any fundamental changes to the governmental institutions of oursystem wo uld not be mad e without the concu rrence of all of its stakeholders.

Federalism, the Senate and the amending formula.

42. Federalism has been identified by the Supreme Court in the Secession Reference (1998)as a definitive principle of the Canadian Constitution (par. 55-60).

43. Federalism is characterised by the distribution of powers between two levels ofgovernment in order to bring together various geographic, economic, linguistic andcultural differences, within a united polity. The Preamble of the Constitution A ct, 1867states the "[d}esire to be federally united into one Dom inion under the Crow n".

44. In order to reflect the diversity of our country, the Senate has been structured by theFounders to guarantee that the legislative process in the Canadian Parliament reflectsregional concerns and contributes to the protection of minority rights (SecessionReference (1998), par. 37-38).

45. This objective finds, its expression in section 22 of the Constitution Act, 1867, where it isstated that representation in the Upper Chamber is based on geographic divisions, ratherthan population ratio.


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46 .urthermore, the Founders foresaw an effective Senate, possessing powers similar tothose held by the House of Commons (section 17 and 91 of the Constitution Act, 1867)and with identical privileges and immunities (section 18, Constitution Act, 1867).47 ,he Constitution Act, 1982 reaffirms the importance of the federal character of Canadaby providing a detailed amending formula, thereby insuring that amendments to allsubstantive questions involving the central elements of the system of government wouldrequire, at the very minimum, the general amending procedure, which involves theconcurrence of seven provinces that represents at least fifty percent of the Canadianpopulation. The amending formula itself is an inescapable acknowledgement andcommitment to federalism.48. Section 42 (1) of the Constitution Act, 1982 provides for a range of subject matters that

would invoke the general procedure for amending the Constitution, including changes tothe principle of proportionate representation of the Provinces in the House of Commonsand changes to the Supreme Court of Canada (aside from its composition). Morespecifically, regarding the six Questions presented to the Court, section 42 (1) of theConstitution Act, 1982 also requires that any changes to provincial representation in theSenate and to residence qualification of senators be approved through the use of the 7/50formula. Finally, the same level of approval is required to make any changes in relationto the power of the Senate and to the method of selecting Senators. The proposals that theGovernm ent put forward are clearly intended to elude the obligations under section 42 (1)of the Constitution Act, 1982: this ultimately amounts to a refutation of the nature offederalism that is at the heart of our Constitution.

Part IV : COSTS49. The A pplicant seeks no costs and respectfully asks that no costs be awarded against him.

Part V: ORDER SOUGHT

50. The A pplicant respectfully requests that he be granted:


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I) Leave to intervene in the said R eference;2) Leave to file a factum of 40 pages;3) Leave to make oral arguments at the hearing of Reference; and4) Such further or other order as the said judge may deem appropriate.

All of w hich is respectfully subm ittedDated at Ottawa this 7th day of March, 2013.

scc senate reference -- joyal memo

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