Hon. Wilfred P. Moore:

Honourable senators, I am pleased once again to submit for your consideration Bill S-224, An Act to amend the Canada Elections Act and the Parliament of Canada Act. Honourable senators will recall that my previous bill, which coincidentally had the same number in the second session of the previous Parliament, received second reading in this place, was passed in committee and received third reading on May 29 of last year. Unfortunately the bill did not pass the other place before that session prorogued.

As with the previous bill, the new bill would limit the discretion of prime ministers with respect to vacancies in both houses of Parliament. It is designed to remove the temptation that prime ministers sometimes feel to abuse the discretion they have in favour of their own party. The bill would establish a time frame for filling Senate vacancies within 120 days, and House of Commons vacancies within a similar time frame.

The bill calls for the writ of election to be issued within 60 days and for the polling day to be fixed no later than 60 days after the writ. In addition, the bill would put an end to the selective calling of by-elections, providing that by-elections must be held in the sequence in which the relevant vacancies occurred.

I want to briefly reiterate my reasons for proposing Bill S-224. Above all, I am concerned about the right of the people and of the provinces and territories to full and timely representation in both houses of Parliament. In addition, I believe that the level of discretion that now exists poses a risk to the independence of the legislative branch, which should be free from control or influence by the executive. The past behaviour of prime ministers in addressing vacancies in both houses is another justification for the concern about increasing concentration of power in the office of the prime minister. Finally, I am motivated by a desire to preserve the capacity of each house to function without the impairment that results when there are too many prolonged vacancies.

Honourable senators, our Constitution reflects a compromise reached by the Fathers of Confederation and embraced by each of the provinces that have joined Canada ever since. Compromise is a Canadian value. Our Constitution guarantees the rights of the provinces which were and continue to be the conditions upon which the provinces entered Confederation.

One of the key conditions was representation in both houses of the new federal Parliament. I do not argue that these constitutional provisions are immutable. I do say, however, that it is not for prime ministers to interfere with them unilaterally by manipulating the broad discretion that currently exists with respect to filling vacancies. It is difficult to be definitive, but there is no doubt that somewhere along the way a lingering vacancy ceases to be the result of simple omission or even neglect, and it begins to serve as an illustration of disregard for the rule of law. So long as the current arrangement is the rule of the land it must be respected. Failure to fill vacancies in both houses in a timely way is to deny citizens, provinces and territories their rights under the Constitution.

With respect to the House of Commons, a prime minister should not be able to call by-elections in one riding because he thinks he can win, while leaving vacancies in another region to languish for fear the opposition will win them. In one recent case, citizens in Toronto Centre had to wait over eight months for a by-election, while citizens in another part of the country were, by the grace of the prime minister, allowed to have a new representative in less than two months. That is worse than just crass partisanship; it is a denial of the constitutional rights of every citizen to be represented in Parliament in a timely way.

What is more, the current government agreed that the excessive discretion of the prime minister needed to be curtailed when it proposed to establish fixed dates of election. Indeed, the potential abuse of prime ministerial discretion was the sole justification for that initiative. Perhaps it was an oversight but, when it made those changes, the government failed to impose similar limitations on by-elections.

As Professor Ned Franks of Queen's University noted in his appearance before our Standing Senate Committee on Legal and Constitutional Affairs which studied the previous bill:

. . . Australian by-elections are governed by the principle that electors should not be left without representation any longer than necessary.

Unfortunately, the same principle does not govern by-elections in Canada. The current government established fixed election dates so that prime ministers could not fiddle with the timing of general elections to their party's advantage,but it has left the timing of by-elections open to prime ministerial machinations.

I will now turn to the Senate. The Constitution requires that vacancies be filled.

Senator Segal: They were.

Senator Moore: I do not remember the honourable senator advocating that. It is nice to hear him among the converted.

By convention, this is achieved when the prime minister advises the Governor General to make an appointment, but this does not mean that the prime minister has the option of leaving seats vacant. I will quote Professor David Smith of the University of Saskatchewan when he appeared before that committee. He said:

Is it possible for the chief adviser of the Crown not to give advice when in fact it is only on advice that you have democratized our system of government? How then can you not give advice? I do not think discretion extends to not doing something. It has a breadth of range of things you may do, but I not think it includes doing nothing.

Regrettably, the current government seemed to have a different view, and despite recent appointments that view has not changed.

Honourable senators, I do not want to repeat the arguments I have made in debate on the previous bill about the unconstitutionality of the Prime Minister's refusal to appoint, a policy which he actually articulated in an appearance before one of our special committees. However, I do want to recall those discussions to your attention because they are pertinent. The Prime Minister has, I am happy to say, finally abandoned his unconstitutional policy. We see the result here in this chamber, with 18 new members. I welcome each of them.

I am especially pleased that my own province of Nova Scotia now has a full complement. Until a few weeks ago, Nova Scotia was lacking 30 per cent of its representation in the Senate. I want to acknowledge my long friendship with Senator Fred Dickson. We have known each other for many years and, for those of you who do not know, Fred was the energy and tactician behind the election victories of our former colleague senator, doctor, premier John Buchanan.

I also want to welcome Senators MacDonald and Greene. I look forward to working with them on behalf of the people of our province. As much as I welcome them, recent appointments do not remove the underlying problem that my bill addresses. The appointments do not prevent this or any future prime minister, whatever the party affiliation, from repeating the mistake of leaving vacancies to pile up for years at a time.

Moreover, the current government has acknowledged by its actions that it was in the wrong but it has never admitted its mistake. Presumably, the government reserves the right to revert to its policy of attrition if it should appear advantageous at some future stage, whatever the remainder of its mandate may be. My bill is still needed because there currently exists nothing to prevent a recurrence of an official policy of piling up vacancies.

At the outset of my remarks I mentioned executive control over the legislative branch and the widespread concern about the concentration of power in the Office of the Prime Minister. It has been 160 years since responsible government began in Nova Scotia. Responsible government means that the executive is accountable to Parliament. It also means that ministers serve only at the pleasure of the elected house. In a way, Parliament is the watchdog over the executive. The increasing power of the prime minister is out of step with this fundamental design.

Today, we confront a situation where the executive has significant control and very broad discretion over filling vacancies that occur in both houses of Parliament. That situation is contrary to the principles of institutional independence and responsible government. It is unworthy of a modern democracy like ours. We cannot effectively promote democratic practices abroad if we fail to observe them at home. The current level of discretion in the hands of the Prime Minister has no principled basis. It makes both houses of Parliament susceptible to manipulation by the Prime Minister and it is high time we fixed it.

Bill S-224 would curtail that discretion and remove the improper influence of the executive over the legislative branch while preserving the capacity of government to plan for holidays, provincial elections, weather and other contingencies when issuing writs for by-elections for the House of Commons.

Honourable senators, in the last Parliament all of us on both sides of this chamber felt the weight of the vacancies as we worked to carry on our committee and legislative studies. At one point the Senate had more committees and subcommittees than there were senators on the government benches. That was not good for the institution, it was not good for the government, and it was not good for the opposition. I have spoken on this point at length in the past, so I will not dwell on it now, but it remains a key reason for circumscribing the discretion of prime ministers.

The House of Commons has always placed time limits on the filling of its vacancies, and with good reason. Bill S-224 would put the Senate on par with the House of Commons and ensure that its membership cannot be reduced to the point where it becomes dysfunctional.

Let me briefly outline the issues raised in the Standing Senate Committee on Legal and Constitutional Affairs when it was examining Bill S-224 in the last Parliament.

Honourable senators, when the former government leader in the other place appeared in committee, he talked a lot about the government's proposals for Senate reform and attempted to equate my initiative with the status quo. He seemed to want to create a false choice between my bill and an elected Senate. That is still an important point because I fear that the government will attempt to create this false dichotomy again.

Bill S-224 does not deal with that suggested Senate reform but rather deals with securing the proper functioning of both houses. Vacancies affect both houses. In addition, no matter what the future brings for the Senate, there will be vacancies. Several provinces have clearly rejected the Prime Minister's current reform initiative, not least because of his unilateralist approach to federalism. However, even if the Prime Minister were to succeed with his proposals, the Senate he envisions will have vacancies. Regardless of the Senate we have today or in the future, prime ministers should not be allowed to let vacancies pile up for years. My bill is needed both for the status quo and for any Senate vacancy-filling process that might exist in the future.

Honourable senators, a concern was raised that my bill could result in by-elections being called with a voting day very close to the fixed date of a general collection. In fact, the existing provisions of the Canada Elections Act address this concern and make provisions for it. My bill merely places a clear time frame on the election to fill a vacancy and prohibits the selective calling of by-elections to the detriment of the democratic rights of citizens who are without a representative in the House of Commons.

Some of the discussion in committee focused on what could happen if a Senate vacancy were due to be filled immediately after a government is defeated in the House of Commons or defeated in a general election. Obviously, such a government would have lost the legitimacy under our constitutional conventions to tender binding evidence to the Governor General. One senator expressed concern that a future prime minister could intimidate a Governor General into making appointments in such a situation. He raised the spectre of an overbearing prime minister arguing that the law requires the Governor General to accept the advice.

Honourable senators, that concern is allayed by a closer look at how the bill has been drafted. The bill does not constrain the Governor General at all. It merely creates a statutory obligation on the prime minister to tender advice but does nothing to disturb the settled convention that a Governor General will refuse to act on such advice when it is tendered by a defeated government. That convention was firmly established in 1896 when Lord Aberdeen refused to make appointments on advice from Sir Charles Tupper who had been defeated in a general election. Bill S-224 does not affect that convention.

In our committee deliberations, government senators raised the theme of legal sanctions and their view that the provisions of Bill S-224 are unenforceable in court. With respect, I think the concern raised misses the point. If we look at things through that lens, much of the constitutional fabric of our country is not enforceable; that is to say, there are no real sanctions against a prime minister who violates all sorts of provisions in the Constitution — both written and unwritten. Indeed, if Bill S-224 would be unenforceable, so too would be the fixed election law that Mr. Harper so desperately wanted when he became Prime Minister. We did not hear government senators raise those objections when they were trying to convince us to support a fixed election law. Hence, it would hardly be credible for them to deploy that argument against a bill that seeks to secure the membership of both houses of Parliament.

In short, the object of my bill is not to sanction a prime minister who fails to respect the Constitution. My objective is to clarify the law.

I would like to take a moment to put on the record that my decision to pursue this legislation does not reflect a change in my original position. I have always been of the view that the Constitution clearly requires that vacancies be filled. The provisions are mandatory, not permissive. Vacancies have lingered because the Constitution does not contain a specific time frame, and it is difficult to know when a prime minister has waited too long. Bill S-224 does not attempt to sanction prime ministers; it attempts to bring clarity to the issue and to draw the line so we will know when a prime minister has crossed it. In light of such clarity, the political consequences of failing to act are more likely to move the prime minister to action.

Honourable senators, in conclusion, after reflecting on our committee deliberations, I decided to alter my bill slightly to address the problem with unlimited writ periods for by-election to the House of Commons. My bill would establish a 60-day limit on by-election campaigns. I feel that including this provision makes the bill more effective at serving its fundamental objective, namely, the timely filling of vacancies in both houses of Parliament.

I am the first to admit that prime ministers of both major parties have occasionally gone too far with the discretion and powers entrusted to them in respect of vacancies in both houses of Parliament. They have shown through their actions that prime ministers cannot be trusted with such power. None of them has ever attempted to make a convincing case that the existing discretion is actually necessary.

Bill S-224 is a modest attempt to curtail the abuses of the past. With this measure, I hope to ensure that the rights of citizens, provinces and territories to representation in Parliament can no longer be manipulated, delayed or denied outright. The bill would limit executive power in relation to the legislative branch. Finally, it would ensure that the membership of both houses is maintained at levels that will allow them to function properly.

Honourable senators, I urge you to support this bill once more.

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