Hon. Eymard Corbin:

We are here to represent our provinces and our regions. We are here to protect minorities. Frankly, I do not believe I have ever read, in any materials setting out the fundamental responsibilities of the Senate, that this chamber is to do the work of the government.

Honourable senators, what is to be done? Under the Constitution, it is the responsibility of the Governor General to summon a qualified person to fill a vacancy in the Senate when one occurs. This is, as Senator Day said earlier, a mandatory duty. I have said it many times previously, in various fora. By convention, the Governor General appoints individuals on the recommendation of the Prime Minister, but, honourable senators, we know from case law that convention cannot override law. I believe the courts would, first and foremost, interpret this. There is a mandatory duty imposed on the Governor General to act, and the Prime Minister is using convention to prevent her from acting — one might say the Prime Minister, by inaction, is placing the Governor General in the position of breaching the Constitution that she is bound to uphold. Should the Governor General continue to break the law or should she follow through with her constitutional responsibility?

I believe there is a point at which a constitutional duty must be performed. Should we look to the Governor General to initiate the appointment process, thus exercising the mandatory constitutional duty imposed on her under the Constitution?

Again, this is not a situation like those that have arisen before, where the issue was concern over how the responsibility is being exercised. The issue now is compelling the Governor General to exercise her responsibility, as required in mandatory language in our Constitution. These are very interesting legal issues, and are ones on which both Senator Day and I believe we need guidance from the courts.

Canadians have the right to have representation in a properly and efficiently functioning Senate. Unless there is a constitutional amendment to reform or abolish the Senate, it must be able to continue to do the work that is required and expected of it, most notably to act as a check on the actions of the executive. That means that our provinces and territories are represented as provided in our Constitution. That means that our numbers must be sufficient to enable us to equip ourselves for our responsibilities. In a free and open society, remaking government by stealth is not acceptable. In a free and open society, the Constitution must be followed.

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