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Speech in Senate Chamber: Senator Cools responds to interventions on her point of order on Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages), and the role of Parliament in bills on judges' affairs.

Hon. Anne C. Cools: Honourable senators, I am pleased to have the opportunity to respond to interventions made to my point of order on Bill C-232 that I raised yesterday.  Many statements have been made here and many assertions have been made, but not that much proof or evidence has been put forward to support the assertions and the claims.

I would like to begin by clarifying a couple of questions that have been put to me.  One of them concerns the role of the administrator.  I have no doubt that there are many senators here who are hearing that term for the first time.  The “administrator” is a different position and a different person than Deputy Governors General.  We see Deputy Governors General come here, who are deputized by the Governor General to give Royal Assents in his stead.  The administrator is a slightly different creature and higher.  The administrator is a substitute Governor General who is so appointed in the instances of serious illness or absence of the Governor General.

I am sure those of us here who are seasoned and experienced parliamentarians, like Senator Murray, will recall when Chief Justice Bora Laskin came to this very house and from that very throne read the Speech from the Throne.  The letters patent identify clearly who the administrator will be; it must be a chief justice, not another justice.  The letters patent articulate clearly the powers and the role that the chief justice should play.

I put that into my speech because all those appointments are unquestionably nothing else but an exercise in the Royal Prerogative.  Perhaps there is confusion as to what the Royal Prerogative is. It is called the lex praerogativa.

Honourable senators, when portions of that Royal Prerogative are delegated to subordinates to do business on behalf of Her Majesty, it is called “privileges.”  For example, we talk about judicial privileges, lawyers’ privileges, solicitor and client privilege, and we talk about prosecutorial privileges, but all of that is part of Her Majesty’s administration where she empowers these people and calls those special gifts — those special endowments — “privileges.”  The two words are intricately connected: the lex praerogativa, the old Latin term, and the lex privilegia.

Having clarified, I hope, the position of the administrator on which Bill C-232 will impact as that of an alternate Governor General, I move on.  Honourable senators, the bill before us is a serious matter.  The questions and the issues are weighty.

I would like to make another small point.  Senator Tardif speaks about me as though I am some sort of an 11th century creature.  I have always thought of myself as a very modern woman — an extremely modern woman.

Senator Munson: Right on!

Senator Cools: Honourable senators, I want to let you know that I led women in this country on many central and important matters, one of which was to wear pants.  That is a minor one, but I certainly did lead in the field of domestic violence, while I asserted strongly that the old notion — the rule of thumb and all of that — was over.

I was a modern woman 30 years ago, and I assert that I still am — an aging modern woman.

Some Hon. Senators: Hear, hear!

Senator Cools: Far from the principles that I am talking about, not being principles of the 11th century, I would also like to clarify that I have been talking about the basic modern principles of responsible government.

Senator Segal: Hear, hear.

Senator Cools: I would like to introduce Senator Tardif to the modern notion of ministerial responsibility and responsible government, the concept of the King, the Queen and her councils in her Parliament, which is the modern system of government. It is not 11th century at all.

Honourable senators, Senator Tardif spoke about restrictions.  I had difficulty understanding what she meant.  It took me a few minutes.  She spoke about disabilities.  Let me explain that when a Supreme Court Justice must live in Ottawa, or the Governor General must reside at Government House, or a senator must reside in the province of his appointment, one could hardly call those “disabilities.”  Senator Tardif used the word “restriction,” but I think she meant “disability.”

The fact is I made certain statements when I spoke yesterday, and I am trying to avoid repeating what I said yesterday because I have so much new information to put on the record.  When I talked about “disability,” I was not talking about anything as minor as a little inconvenience; I was talking about “disability.”

I will repeat the statement I made yesterday.  I will quote myself, where I was actually quoting from the Oxford dictionary on the definition of “disability.”  I will put it on the record again.  The definition is:

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.

Honourable senators, the current Supreme Court Act at section 5 says clearly:

Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

That is the state of the law, honourable senators.  All of these people are eligible for appointment to the Supreme Court.  The proof that this is prerogative power is in the margin note, which states, “Who may be appointed.”  It is not  “recommended,” but “Who may be appointed.”  The fact is that Bill C-232 will disable large numbers of individuals who in this country today are eligible and would be eligible to be called by Her Majesty to the Supreme Court to serve, and will not be eligible to do so if Bill C-232 is passed. You call that, honourable senators, “a bill of disability.”

These bills were quite common.  However, with the modern times of charters of rights and freedoms, and human rights, these bills have gone away quietly.  It is pointless to argue that a few minor restrictions here and there, some inconveniences, are in the same category as the disabilities in this bill.

I do not want to go further on this because I have been working hard to avoid going into the substance of the bill.  I have made the point, and I will leave the point right there.

Honourable senators, there have been assertions here from my colleagues who have said that Royal Consent may be given at any stage, and here they cite Beauchesne’s paragraph 727 about the final stage.  Well, that is true.  However, usually Beauchesne’s and these other references are about government bills.  I went to great pains yesterday to explain that a government has access to Her Majesty and is able to obtain the Royal Consent, literally, whenever they see fit.  I put that before the house that problems arise and become more complicated when these bills that require the Royal Consent are moved by private members, what they used to call “independent members.”  There were government members, ministers, and the others were all independents, now private members.  We must understand clearly that the questions that I raised revolved around the position of private members and opposition members who bring bills without the Royal Consent.  I even described in my remarks yesterday that the Royal Consent in those instances must be obtained by a member moving an address to Her Majesty praying for the Royal Consent.  An “address,” for the new senators, is the form of speaking to the sovereign.  The houses speak to each other by message, but we speak to the sovereign by an address.

Honourable senators, as a part of our privileges under section 18 of the BNA Act, we have a right.  If a private member brings a bill without the Royal Consent, we have a right under our privileges to speak in that debate on that motion for an address praying for the Royal Consent.  I am saying that we have a privilege here to take part in a debate; to advise the Governor General as to whether or not he should give a Royal Consent to a private member.

Honourable senators, I encourage Senator Tardif to move such a motion, which would have the wonderful effect of having even more debate.  She said that I am trying to limit debate.  It would be a new and wonderful debate on whether or not the Governor General should actually grant the consent.

Having said that, honourable senators, I want to continue what I was doing yesterday, because His Honour has a huge and challenging job before him.  I would like to continue to put a few more precedents on the record, if I may.

I would like to offer Your Honour another important precedent, which took place in 1844, which Sir John A. Macdonald would have been well aware of in 1879.  It was called the Diocese of St. Asaph and Bangor Bill. In this instance, the bill was withdrawn because another prime minister, the Duke of Wellington, stated, at page 124 in the debates of the House of Lords, on July 1, 1844:

He had been called on, . . . to state whether or not he was authorized to give Her Majesty’s consent to its discussion; he answered that he was not so authorized; and he was not so authorized on this last stage of the Bill.

There are several other precedents.  I am hoping to get some more on the record, or I can table some of them, if necessary.  However, they are very clear precedents.

The important thing, Your Honour, about this particular one, the Diocese of St. Asaph and Bangor Bill, is that at one point in the debate, the Lord Chancellor expressed doubt as to whether or not he could put the motion before the house.  He called on the house for advice and the house suggested — by motion — that a committee be appointed to look at the question.  It is brilliant reading; brilliant debate, and brilliant, clear, lucid thinking.

The important thing is that the committee read like a who’s who of the legalists of that era in England: Lords Brougham, Campbell and Cottingham — very big names.  His Honour might want to look at that.  This is the second case where a prime minister was involved.

Honourable senators, it is a serious matter, and a rare matter, when a prime minister would rise on the floor and intervene at that stage and in that way because, as we know, a lot of the business of Her Majesty is done quietly and discreetly, without much ado.

Having said that, I remind honourable senators that the Supreme Court of Canada is a very strange creature.  I do not know if many senators know this — Senator Murray would — but the Supreme Court of Canada was created pursuant to a power given in the BNA Act.

That power is in section 101, which says that the Parliament of Canada may provide for the Constitution, maintenance and organization of a general court of appeal.  That was the grounds out of which the Supreme Court of Canada and the Exchequer Court, now called the Federal Court, were created.

Honourable senators, many are in awe at the mention of the Supreme Court, but the Supreme Court’s usefulness and existence were questioned very heavily at the outset.  The court had to spend many years proving itself, because it was frowned upon by the other superior courts which were antecedent to the BNA Act and Confederation.  That is very important.

Honourable senators, there is a point that no senator has raised yet.  The complicating fact about Bill C-232 is that it is about justices and judges.  We, as members of Parliament, have a range of practices that are called into existence whenever bills about judges are before us.  I will go into that.

Honourable senators, I thank the intervening senators for their time and efforts.  Bill C-232 will amend the Queen’s absolute prerogative, her absolute power in appointing judges by disabling a class of Canadian persons from said appointment.

I want to repeat very clearly what I am asking His Honour to rule on.  I am asking him to rule on whether or not this bill touches the Royal Prerogative; if it requires the Royal Consent; and to ensure that the proper procedure is followed.

Honourable senators, I am not asking His Honour to declare the bill out of order or anything of that nature.  I am asking him to rule, as other Speakers, especially in the House of Commons, such as Speaker Lucien Lamoureux, have ruled.

I have already cited many relevant precedents and authorities directly from the original records.  I would like some clarification.  I frequently hear the term “the procedural authorities,” and I would like to find out who they are.

Your Honour, I note the excellent books by Mr. Alpheus Todd — he is the greatest of them all.  He predated and preceded Erskine May in writing.  He is probably the most-quoted Canadian in court cases all over the world, especially in the past century.  Messrs. Todd, Bourinot, Beauchesne and May created the most valuable and helpful reference books that guide us to sources.

Honourable senators, these writers, with their helpful summaries, however, are not the authorities and are not declaratory or authoritative.  Every time we say the word “parliamentary authority,” let us understand what we mean.

The authority of precedent is the actual record of the actual events in the actual words spoken in debate by the members and their Speakers in their houses — not those books or their summaries, which are subjectively written and selectively edited, with all the pitfalls that selectivity and subjectivity will bring.

My intention, Your Honour, was to place before you those true precedents and the authorities themselves.  If there is doubt whether or not Mr. Gladstone was a great authority, all we need to do is to examine all the language in this place around financial bills, money and appropriations.  He created much of that language.

What I am talking about, honourable senators, is not the 11th century.  I am talking about modern practice as it has developed in modern times.

My true purpose, Your Honour, is to retrieve, to recover to the chair, our Senate Speaker, the sole and proper power to give rulings and to lay down precedents.  That is why I have been so diligently laying out the precedents and putting them before him.

Honourable senators, we are the upper house.  Our Speaker is not of an elected character as in the other place.  He is of a vice regal character, the fourth in precedence in Canada.  He is a representative of Her Majesty and a guardian of her interest in this Senate, which is the house of the throne and the house of Parliament wherein its three constituent parts, Her Majesty, the Senate and the House of Commons, may convene in Parliament assembled.

Honourable senators, it has been held by many great thinkers that true liberty and true freedom live in the rules that govern how we proceed, called the law of Parliament.  This law of Parliament, the rules, forms and procedures by which our laws are made with ministerial responsibility, is probably the greatest contribution of Britain and its common law—the greatest contribution they have made to the world.  I repeat, this is the notion: The King in his council in his Parliament is alive and well in our practices, and I shall show that.

Bill C-232 is about the judges.  Therein, honourable senators, lies the dilemma.  Parliament’s rules prescribe practices regarding our approach to bills about judges.  In fact, the law of Parliament prescribes the ways that we should manage such bills.  The British North America Act, 1867, sections 99 and 100 charge us as members of each house with the duty to protect the judges from executive caprice, pleasure and displeasure.  The act therefore grants us superintendence over them.

As a result, our practice has been that bills, measures about judges’ affairs, especially salaries, pensions, selection and conduct — some higher in priority than the others — should proceed in the houses with caution, with minimum conflict and controversy, with equanimity and with as maximum agreement as we can get.

Honourable senators, it has always been thought that it is a terrible thing that a bill about judges, especially salaries, which I will come to in a minute, should proceed amidst strife and threat.

Bills about judges’ affairs should not be subjected to partisanship spectacle because of the inherent negative consequences that would fall to justice.  We should fear the potential crises in justice itself.  I used to be in charge of the government’s supply bills.

Honourable senators, as we know, judges’ salaries are permanently charged to the Consolidated Revenue Fund.  They are statutory charges not subject to the annual review, debate and vote as annual supply items.  There is a reason for that, honourable senators.  The reason is to minimize adverse or hostile criticism towards or about judges in the process during debate on their salaries and to avoid potential questions of confidence and ministerial resignations over those salaries.

There is much practice that has developed as a result of the protection that we accord to judges.  However, I have to tell honourable senators that if this house ever believes that a judge were doing something very wrong, it would have a double duty to move on that.

Our practices expect that the houses of Parliament will approach bills and measures about judges with great attention, caution and care.  I shall leave the question of addresses for removals and their relationship to questions of confidence and the resignation of ministers for another day.

I will throw out one item, honourable senators.  In this country, we have never removed a judge in a joint address procedure.  In England there was only one: Sir Jonah Barrington.  It was a famous case.  We have not done so, not because there have not been bad judges, but for the potential crisis that would result in justice itself and the potential for governments to fall on those kinds of questions.

Honourable senators, that is why I have said that it would be constitutionally catastrophic for us to place our Speaker in a position to have to refuse to put the question on this bill or that a senator be compelled to move a motion to nullify the proceedings on this bill if adopted without the Royal Consent.

Honourable senators, Bill C-232 about judges is large and complex, and engrossed with the prerogative law, which is purely executive and not administrative.  Usually, such bills are too important and too problematic to proceed as private members’ bills.  In fact, parliamentary practice developed to avoid such conundrums.  Formerly, ministers of the Crown were confined to their executive duties and to securing the house’s agreement to those consequential measures.

With the ascent, and the advent, of responsible government — and not in the 11th century — the roles and duties of ministers in public affairs and in measures for the common good were greatly expanded.  This expansion simultaneously enlarged private members’ possibilities, granting them greater and more opportunities to raise, debate and amend questions.

It became the rule, honourable senators, that all great, important and complex public measures — for example, bills about judges — should originate with a minister.  In this case, that would be the Minister of Justice, ex officio the Attorney General, attornatus rex, and the Law Officer of the Crown, the guardian of the prerogative and the curial powers — the guardian of justice itself.

Alpheus Todd wrote about this subject at page 299 in his 1869 book, On Parliamentary Government in England, Vol. 2:

But it has only been by degrees, and principally since the passing of the Reform Acts of 1832, that it has come to be an established principle, that all important acts of legislation should be originated, and their passage through Parliament facilitated, by the advisers of the crown.

He continued at page 299 on these events that:

. . . led to the imposition of additional burthens upon the ministers of the crown, by requiring them to prepare and submit to Parliament whatever measures of this description may be needed for the public good; and also to take the lead in advising Parliament to amend or reject all crude, imperfect, or otherwise objectionable measures which may at any time be introduced by private members.

Honourable senators, as I said, with the enlargement of the duties of ministers to initiate and originate public measures, private members’ opportunities for debate, criticism, amendment and rejection were also enlarged, but with two important limitations.  Alpheus Todd, wrote at page 300:

On the other hand it should be freely conceded to private members that they have an abstract right to submit to the consideration of Parliament measures upon every question which may suitably engage its attention, subject only to the limitations imposed by the prerogative of the crown, or by the practice of Parliament.

This is why the law and practice of Parliament prescribes the Royal Consent for bills that affect the Royal Prerogative — the purely executive law.

Honourable senators, Todd explained and summarized these developments.  At page 317, he wrote:

Thenceforth, the rules of Parliament, which prohibit the introduction of a Bill to appropriate any portion of the public revenue, except at the recommendation of the crown, through a responsible minister, — and which require the consent of the crown before either House can agree to a Bill affecting the royal prerogative, — together with the admitted right of ministers, so long as they retain the confidence of the House of Commons, to regulate the course of public business — have secured the rights of the sovereign, as a constituent part of the legislative body, as unmistakeably, if not more effectually than by the direct interposition of a personal veto.

What happened was that the sovereign surrendered his direct personal intervention and worked more through ministers.  It is at that time in history that these practices and these rules about which I am speaking came into prominence.  As the advent of responsible government was moving ahead, we find a greater preoccupation with these rules and practices.

Honourable senators, the purpose was to secure the rights of the sovereign as a constituent part of Parliament.  The sovereign Queen has an abiding presence in the rules and practices of each house, something very akin to the mace on the table.

Honourable senators, Sir William Blackstone told us about the sovereign king or queen in his 1765 Commentaries on the Laws of England, Book I, at page 146, that:

. . . he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being.

He said, at page 149, that Parliament is:

. . . the great corporation or body politic of the kingdom, of which the king is said to be caput, principium, et finis.

Her Majesty is caput, principium, et finis.  That is the head, the beginning and the end.  Everything about Parliament — the summoning, the prorogation, the dissolution, the Royal Assent— begins and ends with the Monarch.  I want honourable senators to know that this is no relic; this is the legal system in Canada.  We must understand that we are not talking about the natural person.  Rather, we are talking about the Queen in her Royal political capacity, the “Royall politick capacity,” in the words of Sir Edward Coke, in which she is the representative and the embodiment of all the people.  The prime minister represents some of the people; Her Majesty represents all the people.

The prerogative law is about the sovereign’s absolute duty to protect, defend and serve her subjects, and to execute justice, as sworn in her Coronation Oath, to which we are joined by our oath of allegiance.

Honourable senators, my final point is to Senator Tardif and her preoccupation with antiquity, time and the 11th century.  A standard rule of these massive prerogative powers, by which most governments run, is always stated as nullum tempus occurrit regi, which means that time does not run against the king or against the king’s powers.  The prerogative power is never lost.  It may be silent for a while, but it is never lost.  Honourable senators should understand that.

It is therefore imperative for the stability of our parliamentary system that we recognize and uphold the balance between the law of the Parliament and the law of the prerogative.  It is unthinkable, in my view, that it could be thought that a bill of this magnitude, with the consequences that it will create for justice, could proceed successfully without the support of the Attorney General of Canada.

Honourable senators, I will come to a conclusion.  I thought I would have many well-thought out arguments to answer, so I came prepared.  Senator Comeau has asked if I would table some of these documents, which would save the Speaker the trouble of having to pull them up.  I would be happy to do so.

The Hon. the Speaker: Honourable senators, is it agreed that the documents be tabled?

Hon. Senators: Agreed.

Senator Cools: Thank you.

 

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