Here’s a question that bothers me. In the arguments about its proposed Senate reform, the federal government has asserted that it could set “consultative” elections of Senate “nominees” pursuant to the general “peace, order and good government” (a.k.a. POGG) power of s. 91 of the Constitution Act, 1867. The counter-argument is that such elections are a modification of the Constitution of Canada “in relation to … the method of selecting Senators” and, as such, can only be implemented under the amending formula of s. 42 of the Constitution Act, 1982. The debate on this point has focused entirely on the interpretation of s. 42. But what about s. 91? The POGG power, after all, is a narrow one (as I have explained here). Would consultative elections fall within its scope?
As the Supreme Court explained in R. v. Crown Zellerbach Canada Ltd.,  1 S.C.R. 401, the POGG power has two main branches. One is a broad but temporary power of dealing with emergencies. It obviously has no relevance here. The other branch, often referred to as “national concern,” “applies,” as Justice Le Dain found after a careful review of the relevant precedents, “to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern.”
It seems to me that “consultative elections” to the Senate do not fit either of these criteria. They are obviously not something which, like aviation or telecommunications, did not exist at confederation ― or rather, could not even be thought of. Elections of Senators admittedly did not exist ― but only because the Fathers of Confederation, after much debate and consideration, opted for an appointed rather than an elected Senate. Nor are they “originally matters of a local or private nature” that came until provincial jurisdiction until concerted national action became necessary.
In its factum, the federal government cites a single case in support of its claim that consultative elections fall within the scope of the POGG power: Jones v. A.G. of New Brunswick,  2 S.C.R. 1982. But I don’t think that it is much on point. Jones was a challenge (among other things) to the constitutionality of the provisions of the Official Languages Act which entitled people to give evidence in the official language of their choice in judicial and quasi-judicial proceedings before courts and tribunals established by Parliament, and in criminal proceedings in provincial courts. Although the Supreme Court referred to the “peace, order and good government” language, it did not actually rely on the POGG power to uphold these provisions, finding instead that they were justified by Parliament’s powers to establish courts “for the better administration of the laws of Canada” (s. 101 of the Constitution Act, 1867) and over criminal law (s. 91(27)). It is instructive, I think, that Justice Le Dain’s comprehensive review of the POGG jurisprudence in Crown Zellerbach does not even mention Jones.
Still, one constant theme in the POGG case law is that it a power that allows the federal government to act when provinces cannot. Should it apply to consultative elections on that basis alone, since provinces ― although perhaps they could organize such elections on their own (a point on which I also have doubts, which I will explain in a separate post) ― could not bind the Prime Minister to “consider” recommending the appointment of their winners? After all, between them, Parliament and the provincial legislatures must be able, to quote A.V. Dicey’s well-known statement of the principle of parliamentary sovereignty, “to make and unmake any law whatever,” right? Well, not exactly. The principle of parliamentary sovereignty must be modified in Canada, not only because of a distribution of legislative powers between two levels of legislatures, but also because some rules, those that belong to the constitution of Canada as a whole, are outside the reach of either of these legislative powers acting alone, though it can of course be modified by constitutional amendment with the requisite level of federal and provincial support. The whole question here is whether current (implicit) rule pursuant to which there are no consultative elections of Senate nominees is among these rules. The fact that its modification does not fit within the recognized categories of the POGG power is, arguably, an indication that it is.
The biggest problem I see with this argument, and it is a very serious one, is just how far it goes. Arguably, if Parliament cannot set up consultative elections under its POGG power, nor can it set up a consultative referendum process for situations that are not within the scope of its ordinary legislative powers. So, for example, while Parliament’s power over “Militia, Military and Naval Service, and Defence,” under s. 91(7) of the Constitution Act, 1867), authorized it hold the two referenda on conscription, it had no authorization to hold a referendum on constitutional amendment, such as the one on the Charlottetown Accord in 1992. For what is the source of Parliament’s power to hold such a referendum? It cannot be anything other than POGG, yet unless we can show that referenda on constitutional subjects are a new “matter” uncontemplated in 1867, or an emergency, that does not work either. Neither of these arguments seems obvious… though really I don’t know enough to tell. In any case, to the best of my knowledge ― though again, it may be very deficient ― no one has questioned Parliament’s power to enact the Referendum Act, S.C. 1992 c. 30, which authorizes the federal government “to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada.” Of course, the fact that the constitutionality of a statute has not been questioned in the past is not proof that the statute is indeed constitutional. But it does suggest that any claims to the contrary are likely ― and perhaps deserve ― to be met with serious skepticism.
Still, however unlikely its acceptance, I wonder if my reasoning above is correct. It is entirely possible that I have missed something. Perhaps I am simply reading Crown Zellerbach too literally, and the “unforeseen in 1867″/”expected-to-be-local-but-become-national” dichotomy does not exhaust the POGG power. I would like to hear your views. As it is, I find the lack of concern with the question I try to raise here a bit surprising.