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Speech in Senate Chamber: Senator Cools speaks to her point of order on Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages), and the bill's need for the Royal Consent.

SUPREME COURT ACT

BILL TO AMEND—SECOND READING—
POINT OF ORDER—DEBATE SUSPENDED

On the Order:

Resuming debate on the motion of the Honourable Senator Tardif, seconded by the Honourable Senator Rivest, for the second reading of Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages).

Hon. Anne C. Cools: Honourable senators, I rise on a point of order, not on the substance or the merits of the question.  First, I wish to thank the sponsor of this bill, Bill C-232, the Deputy Leader of the Opposition, Senator Claudette Tardif, for her efforts on this bill.  I believe that the Senate is enriched by her work on language, and minority rights.

Private member’s bill, Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages), is out of order because it does not conform to the settled law of Parliament and its parent power, the law of the prerogative, which hold that bills that affect Her Majesty’s Royal Prerogative require Her Majesty’s Royal Consent in her capacity as the head of Parliament and the enacting power in our Constitution.

Honourable senators, Bill C-232’s single purpose is to amend the sovereign’s, the Queen’s, Royal Prerogative to appoint judges to the Supreme Court of Canada.  This purpose places this bill in that class of bills that require the Royal Consent, that ancient parliamentary process to obtain the Queen’s agreement for either house to debate or consider any bill that affects Her Majesty’s sovereign and absolute interests.

The Royal Consent is no mere formality, nor is it a relic from other times.  It is absolutely necessary, and has been prescribed by ancient parliamentary practice and usage.  In Canada it is granted by Her Majesty’s representative, the Governor General, His Excellency David Johnston, and embodies Parliament’s and the Constitution’s deference to the sovereign Queen as their head and the sole representative of all the people of Canada.  This consent does not mean agreement to the merits or the substance of the bill, merely that the houses may debate on it.

Honourable senators, this bill is solely concerned with Her Majesty’s prerogative law as the fountain of justice, the fons justitiae, that piece of prerogative law by which Her Majesty, in the person of our Governor General, by the instrument of letters patent under the Great Seal of Canada, constitutes and commissions Canadian persons as judges of the Supreme Court of Canada to serve during good behaviour, for life.

Honourable senators, the legalist Henry, Lord Brougham, once a Lord Chancellor, said that the sovereign Queen:

. . . has the absolute power of appointing all the Judges, . . .

This quote is in his 1861 book, The British Constitution: Its History, Structure, and Working, at page 272.

The appointment, the constituting of judges, is a high and absolute prerogative power.  Bill C-232’s single purpose is to interfere with this prerogative power, this constituting power, by which Her Majesty the Queen, the chief magistrate, transforms certain Canadian persons into judges; that is, royally uplifted persons who have been royally vested and endowed with the high powers, privileges and immunities, to hold court, to try causes and to pronounce judgments.  This appointment was called “raised to the bench.”

The constituting of superior court judges is a royal matter of some gravity.  Bills that seek to amend that royal power need royal attention and royal agreement even to be debated in Her Majesty’s Senate and House of Commons.

Honourable senators, this bill’s primary object remains undeclared.  This type of bill is rarely used.  Now condemned and unused, these bills were known as bills of disability.  Bill C-232 is a bill of disability whose unspoken goal is to disable a specific class of Canadian citizens of their legal rights that are normally enjoyed by them.  The 1981 Compact Edition of the Oxford English Dictionary defines “legal disability” as, at page 737:

Incapacity in the eye of the law, or created by the law; a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them; legal disqualification.

This bill proposes to disable a defined class of persons, which is all Canada’s unilingual lawyers and judges, by far the majority, from appointment as Supreme Court judges.  This bill asks Her Majesty to perform a novel act, and to enact a statute of disability, a doubtful policy of dubious morality and dubious legality.  This bill has no precedent.  These novelties alone render the Royal Consent imperative and urgent to this debate’s continuation.

Honourable senators, the mischief grows like Topsy.  Its other unspoken goal is to amend sections IV and VIII of the 1947 Letters Patent given under the hand of King George VI.  Section IV is the source of the Governor General’s power to appoint judges.  The bill’s drafters seem not to understand that the office of the Governor General and the prerogative law are constituted, not by the British North America Act, 1867, but by the royal, absolute and sovereign instrument of Letters Patent, which antedates the 1867 Act and cannot be amended by any bill.  It is beyond amendment by any bill here. 

Section IV states:

And We do further authorize and empower Our Governor General to constitute and appoint, in Our name and on Our behalf, all such Judges, Commissioners, Justices of the Peace, . . .

This bill also amends Section VIII, the power to constitute the administrator, who is the person who acts in the absence or illness of the Governor General.

Honourable senators, Bill C-232 is an alien and invasive creature.  It violates the substance and the design of our law of Parliament, and disturbs the balance, equilibrium and comity between its three constituent parts: the Queen, the Senate and the Commons.  This bill asks this Senate to trench and to usurp, to take over the exercise of the Royal Prerogative, a purely executive act — not an administrative act, a purely executive act. 

Executive functions are no part of the privileges, powers and immunities of senators or members of Parliament, received from the United Kingdom and granted to us by the BNA Act, section 18.  Senators have no power to even debate, far less to adopt, Bill C-232 without the Royal Consent. This bill is out of order.

Honourable senators, I shall cite the precedents that bear materially on this bill.  John George Bourinot wrote about the Royal Consent. In his 1916 book, Parliamentary Procedure and Practice in the Dominion of Canada, he said at page 413:

. . . the consent may be given at any stage before final passage, and is always necessary in matters involving the rights of the Crown, its patronage, its property, or its prerogatives. This consent of the Crown may be given either by a special message, or by a verbal statement from a minister — the last being the usual procedure in such cases.

The Royal Consent to bills is the Governor General’s royal grant of power to either house, delivered there by a special message, or by a verbal statement from a minister.  It represents his considered decision, founded on the advice given to him by his Crown ministers under ministerial responsibility.  Ministerial advice is pre-eminent.  Recently, there have been two compelling cases in the Senate.  Two Royal Consents were intimated here by two ministers, both of whom were Privy Councillors and Senate government leaders.

Honourable senators, on October 4, 2001, Senate government leader, minister, Senator Sharon Carstairs, P.C., one of the truly great women of Canada, gave the Royal Consent for her government’s Royal Assent Bill S-34.  She did this correctly as she began second reading debate.  She said, at page 1379 of the Debates of the Senate:

I have the honour to advise this House that:

Her Excellency the Governor General has been informed of the purport of this bill and has given consent, to the degree to which it may affect the prerogatives of Her Majesty, to the consideration by Parliament of a Bill entitled “An Act respecting royal assent to bills passed by the Houses of Parliament.”

Senator Carstairs acted in accord with the settled law of Parliament and ministerial responsibility.  This case showed the legal role of ministerial advice.  Remember, honourable senators, this bill had been moved by the opposition leader, Senator John Lynch-Staunton, who, by agreement with the government, withdrew his bill to allow Senator Carstairs to introduce it, corrected, as a government bill, Bill S-34.

The other case was on June 29, 2000.  Senate government leader, minister, Senator Bernard Boudreau, P.C., intimated the Royal Consent for the consideration of the government’s Clarity Bill, Bill C-20, saying that Her Excellency was pleased, in the Queen’s name, to give consent to the degree that it may affect the prerogatives of Her Majesty.  These two Senate precedents leave no doubt.

Honourable senators, Alpheus Todd, John George Bourinot, and Arthur Beauchesne recorded the authorities on the need for the Royal Consent to bills, and on the sad fate of bills that are refused it.  John George Bourinot wrote, at page 414:

If the introducer of a bill finds, from statements of a minister, that the royal assent will be withheld, he has no other alternative open to him except to withdraw the measure.

Among the many U.K. refusals, Bourinot recorded a famous Canadian refusal of Royal Consent when our House of Commons Speaker, in 1879, withdrew a bill moved by private member MacDonnell, because the premier informed that the Royal Consent would be refused. Bourinot wrote, at page 415:

The premier having stated that he was not prepared to give the consent of the Crown to the bill, the mover was compelled to withdraw it.

Honourable senators, that premier was Prime Minister Sir John A. Macdonald.  Commons Debates April 28, 1879, reads, at page 1579:

Sir JOHN A. MACDONALD said this Bill affected the Royal prerogative, and the assent of the Crown must be given to it. He was not prepared to give that assent . . . and, as the assent of the Crown had not been given to the Bill, it could not be proceeded with.

Commons Journals that day reads, at page 322:

Ordered, That the said Order be discharged.

Ordered, That the Bill be withdrawn.

Honourable senators, I note that Senate Speaker Dan Hays was unaware of this when he ruled, on October 25, 2001, insisting:

There is no known example in Canada of consent being refused. This raises the issue of whether a convention may have evolved here that consent will be granted, making the request for it a formality.

Perhaps His Honour, Senator Kinsella, should take a fresh and probing look at previous speakers’ rulings on the Royal Consent. 

Honourable senators, Alpheus Todd wrote about the seminal private member’s precedent — remember, honourable senators, there is a difference between government members operating under ministerial responsibility, government ministers and private members — laid down by the great Liberal parliamentary authority William Ewart Gladstone, while opposition leader in the U.K. Commons.

Honourable senators, you must know how these individuals influenced my life and how much I read about these men.  In his 1869 Parliamentary Government in England, volume II, Alpheus Todd wrote, at page 298:

This intimation should be given before the committal of the Bill. But where a measure of this description is initiated by a private member, and not upon the responsibility of ministers, the House ought to address the crown for leave to proceed thereon, before the introduction of the Bill . . .

John George Bourinot said the same at pages 413 and 414, which is repeated in Beauchesne’s in paragraph 728, at page 213.  Beauchesne’s is a repetition of Bourinot’s. 

Honourable senators, I shall read the words of William Gladstone, whose work influenced my life.  One must know the influence of British Liberalism in the British Caribbean.  On May 7, 1868, moving his address for Queen Victoria’s Royal Consent, for his private member’s bill, he said:

. . . I have felt . . . that it was my duty . . . to ask the House to present an Address requesting the Assent of the Crown, and allowing us to deliberate upon this subject before any Motion be made in the House for the introduction of the Bill.

Honourable senators, I shall quote one of the greats, Lord Lansdowne, a former Governor General of Canada and a great authority who, from the House of Lords opposition benches, laid down a germane precedent.  On March 30, 1911, relying on Mr. Gladstone, Lord Lansdowne moved an address for His Majesty’s Consent.  In his stunning summary of the law and precedents on the position of an opposition member and the Royal Consent, he said:

. . . it is certainly a breach of the law of Parliament to pass through either House a Bill affecting the Prerogative of the Crown without the assent of the Crown. I do not think any one will dispute that. We also conclude from these precedents that, although this assent may be signified at any stage, it is the proper course to obtain it before the introduction of the Bill. But we draw this further conclusion in reference to cases where the Bill is introduced, or is sought to be introduced, not by the Government, but by the Opposition.

He explained:

The case of the introduction of such a Bill by the Opposition is clearly a different case from the introduction of a similar Bill by the Government, because it is perfectly fair to assume that if the Government makes itself responsible for the Bill it can at any moment count upon the assent of the Crown.

He added:

That, of course, is not true when the Bill is moved from the Opposition side of the House, and it certainly does not seem fair and reasonable that, in such a case, a Bill should not only be introduced, but, perhaps, carried through several stages and laboriously debated under conditions which would expose the movers of the Bill to find themselves estopped by the Government, who would only have to signify, at whatever moment might seem fit to them, that the Royal Assent was not likely to be forthcoming.

 

Honourable senators, Bill C-232 is in its final stages.  It came from the other place.  About this, Speaker Lucien Lamoureux — and I have been quoting the original precedents, not what others have written, but the originals — while ruling in the other place on April 25, 1966, cited John George Bourinot and cautioned, at page 434 Journals:

. . . a bill may be permitted to proceed to the very last stage without receiving the consent of the Crown but if it is not given at the last stage, the Speaker will refuse to put the question.

This is the Speaker of the House of Commons speaking about the last stages in the House of Commons.

Honourable senators, to muse why the Speaker in the other place did not refuse to put the question there, or why the Royal Consent was not sought there, is moot.  The bill is before us now, and it is still a private member’s bill moved from the opposition.  For probity, order and regularity in our proceedings, it is now imperative that the Senate receive some indication of Senator Tardif’s intentions to move an address to the Governor General praying for the Royal Consent.  I had thought that Senator Tardif’s delay was for some good reason such as discussions with the government, as in the case of Senator Lynch-Staunton.  However, Senator Tardif’s recent actions in the Senate suggest that she wishes us to carry this bill through all its stages without Royal Consent.  That is the reason, honourable senators, that I have raised this point of order.  I have been waiting for this indication.  I have concern that without Royal Consent, His Honour will soon find himself in the calamitous position where he must refuse to put the question.  I do not know whether honourable senators know what this means, but it is an extremely serious matter.

Honourable senators, paragraph 726.(2) of Beauchesne’s Parliamentary Rules & Forms states at page 213, the consent’s:

. . . omission, when it is required, renders the proceedings on the passage of a bill null and void. 

If this bill were adopted without it, it will undoubtedly face such a motion as have many other bills that have proceeded without it.  I therefore ask the Speaker of the Senate to rule and to follow Speaker Lamoureux’s ruling that:

. . . it is . . . the duty of the Speaker to determine whether this Bill interferes with the Queen’s prerogatives and to see that the proper procedure be followed.

What I am asking Your Honour to rule on is clear: Does this bill touch the Royal Prerogative and, if it does, are the proper procedures being followed?  Once again, I thank Senator Tardif for her hard work.  I am aware that time is ticking.

I thank honourable senators for listening and for their attention.  Understand that a few hundred years of development have gone into these rules and practices and for good reason.  They are substantial and important to all of our processes.  This bill in respect of the appointment of judges is solely about the Royal Prerogative—the lex praerogativa.  It is about nothing else, and such a bill requires Royal Consent.  In addition, it is our right and privilege to be informed by the mover of the bill as to her intentions in respect of acquiring or obtaining that Royal Consent.  I thank honourable senators.

 

The remainder of this day's Senate Debates are available here.