Proceedings of the Special Committee on
Bill C-20

Issue 6 - Evidence

OTTAWA, Thursday, June 15, 2000

The Special Senate Committee on Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, met this day at 6:09 p.m. to give consideration to the bill.

Senator Joan Fraser (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum. The ninth meeting of the Special Senate Committee on Bill C-20 is now in session. I should like to welcome all of you to this hearing. This evening, we continue our consideration of Bill C-20.

[Translation]

The bill was adopted by the House of Commons on March 15, 2000 and was read in the Senate for the first time on March 21, 2000. It was then read for a second time on May 18, which means that the Senate approves the principle of the bill. Bill C-20 was then referred to the Special Committee for in-depth study.

[English]

That consideration continues this evening with the appearance, first, of the Honourable Willard Estey, former justice of the Supreme Court of Canada, followed by Professor David Smith, who is head of political studies at the University of Saskatchewan. Each witness will make an opening statement, which will be followed by questions and answers.

[Translation]

Once the committee will have heard all the selected witnesses, the bill will move to clause-by-clause consideration. The committee will then report its findings to the Senate for its consideration.

[English]

Before we move to Justice Estey's testimony, senators, there is a document being circulated. That is the list that we asked Minister Dion for of examples of legislation where Parliament has given the House of Commons a role that is not given to the Senate. You may recall that in his testimony he said he had a list with him and we did not get it at the time. It has now been provided for the committee.

With that, Mr. Estey, thank you very much for agreeing to be with us today. We look forward to your presentation. Please proceed.

Mr. Willard Estey: Honourable senators, for three days I have been reading material generated in this blast factory and I thought I would strike a blow for freedom and make a short presentation tonight and see what I do with the questions.

On reading of a considerable amount of the discussion you have generated here, it is a puzzle to me why this statute takes the form that it does. That is, it was co-authored by the Senate, but the opening section carves the Senate out. How is it that Bill C-20 has survived its unconstitutionality when it has effectively and indirectly undermined the concept of bicameral Parliament? Bill C-20 has put one half of bicameral power in the invidious position of losing its status in the general operations planned in this bill the moment that that body, the Senate, signs the proposed legislation. It is like that insect that commits suicide. Honourable senators will forgive me for comparing the Senate to an insect, but there is a funny little animal: When it begins to think and grow up, it kills itself.

There does not seem to be any explanation for that circuitous route, and the Supreme Court of Canada has condemned that conduct at least 50 times. There was a major decision in 1977 by the full panel of nine judges, which said that bringing about a result indirectly in the manner that happens here to circumscribe the participation of the Senate down to zero from section 1 on is beyond the power of the legislature.

I turn now to the question of the 1998 court reference in the Supreme Court of Canada from the Governor in Council. The court found that Canada as a nation is indivisible. That has significance beyond its rather strong meaning: unless you can find something in the parent legal body statute or constitutional document that allows the termination of that constitution and country by external influence or by internal legislative action, that is ultra vires. There is no question, when the 59-page reference is read, that it is clear that the court has determined that Canada is an indivisible, constitutionally governed country.

There may not be much significance to whether or not a country is divisible except this: If there is no provision in the Constitution to take apart in any way or reduce the functioning of that country, then the process can build on it. Where there is nothing in the Constitution to open that gate, the legislature, et cetera, cannot get through. Therefore, we say that, under the Constitution and pursuant to that Supreme Court reference, there is no divisible measure upon which to erect these proceedings.

Those are the two points that I would make. I have cut them down from many small points, because I see from examining your record that you have been burdened with many pursuits of what turned out to be blind allies and things that do not assist in your complicated burden. Those are my submissions, Madam Chair, and I would be glad to struggle with any questions you may have.

Senator Beaudoin: On the question of bicameralism, the Supreme Court said clearly in an advisory opinion in 1979, 1980 that we have a principle of bicameralism and it is a fundamental feature of the Canadian federation. That being the case, the arguments we have heard so far are as follows: In the field of legislation, an ordinary statute, the two Houses of Parliament are equal. If, for example, the Senate says no to Bill C-20, the bill disappears. In the field of constitutional amendment, we have had only a suspensive veto since 1982. What we have heard so far is that this bill is not intended to be a constitutional amendment; this bill is intended to be an ordinary statute of great importance.

My question is this: Do you agree with the opinion that, if we do not respect the equality of the two Houses in a statute, that violates bicameralism and in that sense is against the legislative power of the state?

Mr. Estey: I will deal with the points you raised in order. First, intention does not mean very much in regard to conduct leading to the constitutional microscope. It falls into the category of the old adage that the road to hell is paved with good intentions. It does not matter what the intention was, you might back over a violation of the Constitution.

Second, and I should have mentioned this earlier, there is no classic definition for Canada's system of referring questions to the courts. They are not judgments. There are no parties. Neither stare decisis nor res judicata arises from a reference. The power of an advisory position is moral. Also, it is human nature that if you appear before the same nine judges and begin to tell them that they got that one wrong, you will lose. On the other hand, if your longevity is good and you wait until you are 79 years old and those judges have gone, the next bunch will not be bound by the original reference.

The advisory opinion is not a big thing I am leaning on. It simply illuminates the sky around events. In the 1990s we became sensitive with people toying with the Constitution. In that, we are probably tracking the American experience where probably the most sensitive thing and the most numerous litigation sites involve Constitution law. I suspect that is so because the federal system leads to many conflicts. You have the queen bee in the hive and the drones out gathering the honey. They fight those battles in the courts. In the United States, there is more action in the courts than in Congress. We have not got there yet, and I hope we never do.

The advisory opinion and the obiter dictum generally are at par. An obiter dictum is a compressed form of an uninvited reference. That is a cynical but accurate view.

I think that what we are dealing with now is the court's momentary description of what is going on in the government. In the 1998 51-page one, we got more than you probably bargained for. We got an essay on American constitutional law and a sort of jurisprudential lecture on meteorology and very little law until about the fiftieth page.

If you run to the end of the road and you have not settled it, the answer is you keep on negotiating. We will come back to that on some other question that more directly relates to it.

Senator Beaudoin: One witness who came before us said that the bill is perfectly constitutional and legal because one House is conferring power to the other House or delegating powers to another House. Personally, I do not think we can accept that argument because the two Houses of Parliament have their own powers. They are both part of the Constitution of Canada. One House cannot, in my opinion, delegate powers to the other. They can delegate powers by statute to a minister or make an order in council, but to delegate legislative powers to another House is certainly something that goes against the fact that in the Parliament of Canada we have two legislative Houses that are equal when they legislate. If that is true, that means that the giving a power to only one of the two Houses certainly violates the Constitution.

Mr. Estey: I tread on that question very carefully. You are in the heart of it and know better than the rest of us. That is the pulse and throb of our constitutional law. Delegation became essential in our system partly because of the size of the country and partly because we were embryonic. We started from a standing start.

There are two different animals under the microscope. One of them is a transfer of power to another administrative body. That is easy; that is a delegation, unless you have so disconnected yourself that you cannot get it back, in which case it is a divestation and an abdication and unlawful.

What we have here is one ring of complexity out further, and that is where two co-position bodies transfer functions and powers between them. Is that permitted or condemned by our constitutional cases? Here you have the two co-equal organisms of a bicameral legislature. Neither one can trump the other, to use an expression I hate but that the cases keep trotting out. I think that means that one cannot derogate from the other, but I do not want to use that word because it is a different arena.

Here the Senate has a distinct function in serving its duties in the bicameral legislature. Anything that interferes with the Senate's exercise of that power is unconstitutional. The other partner in crime inside that hive is the House of Commons. The House of Commons is all powerful, in one sense, but it is not all powerful vis-à-vis the Senate. Therefore, the House of Commons could not say to the Senate, "You get out of the way; I will pass this act." They could not do that, but they do not want them around. Therefore, they designed a device whereby the Senate will be called upon to pass the bill completing the legislative machine's process, but the first section of that proposed act is suicidal to the position of the Senate.

There was an interesting case in the Supreme Court of Canada in 1977 from the province of Saskatchewan, the Amax Potash case. I could cite at least 50 more. That is the latest one with all the big guns up to bat. Chief Justice Laskin presided. The judgment was written by then Justice Dickson, later successor to the Chief Justice. The heart of the judgment is based on a long quotation from Chief Justice Kerwin of the Supreme Court of Canada, so it is ironclad, first-class law. There it was laid down in simple English that once a power is created it cannot be derogated from by anyone or added to by anyone, and here we have that very plan. The Senate is chopped out of the game plan after the Senate launches the thing in motion. It is the insect parallel where it turns around and kills itself.

We say you cannot do that. It does not matter whether damages flow or not. As you know better than I do, when you are dealing with constitutional law it is the fact that you have injured the vitals of the Constitution that counts. It does not matter what good intentions the people involved have. That is the end. That is the key. You have asked the right question. That is the key to my first point.

Senator Kroft: It is a pleasure to have this opportunity. I wonder if you would comment on the argument that has been put before us by a number of our witnesses who find the action contemplated by this bill appropriate. The line of argument is that the government has the power to enter into negotiations as contemplated on secession as itself. Government has that power as it would on any constitutional amendment issue. This was reinforced at the legal level and I think by Claude Ryan at the practical level, saying this is the way things happen. The argument therefore says that if the government has the power in any case, it can name formally or informally any advisers or group of advisers that it chooses. In the case of this bill, it has chosen to designate the House of Commons as its consultant, but that does not violate any constitutional position because it is doing what it had the power to do anyway.

Mr. Estey: That is right. That is what makes this complicated. You can act without damaging the House of Commons but still damage the co-legislator or the Senate. I referred to that a moment ago. You do not need to cause injury or damages in the legal concept; you simply step on the wrong wire. Here the Senate did not survive the process. It is not up to us, the unwashed, to figure out why it happened. It is just that the Senate had that position, and they would lose it if they signed the bill out and got it to the Governor General.

The simple law is that you cannot impede the progress of that bill. If one of the authors of the bill has the elimination of one organism right in several sections of that bill, what can that organism do? First of all, it can amend it. However, why should they have to amend it? If it is an injury against the Constitution, it will fall to the ground and then you can catch it the next time around. You do not have to go through the amendment.

You are quite right, you can delegate all the powers you want to the House of Commons, as long as you do not take it away from another holder of that power. That is a narrow, technical position; I confess to that readily. All constitutional law is a little on the brittle side.

Senator Kroft: I hear what you say but I think the line of argument goes that you are granting a power to the House of Commons but you are not taking a power away from the Senate other than in that you are favouring the House of Commons over the Senate. You are not taking away from the Senate a power they now have, because as more than one witness has pointed out, this is new ground anyway, this has not been done before. You are taking something away from the Senate only by comparison, in the sense that they are not getting something that someone else is getting, but it is not something they have to begin with. I am not clear what is being taken away from the Senate.

Mr. Estey: Surely, the Senate has inherently the right to mix in with the constitutional process affecting the structure of the country. This clearly is a foreteller of what might happen. The Senate now, at the level of the first round, where the importance of the question of the referendum is great, is struck out. The Senate will lose its right to say that the question is not clear, and that will happen in a bill that would be passed by the Senate. The Senate is jammed up against its other function, and that is to pass that bill unless there is something inherently defective about it. The House has placed the Senate in that dilemma without any basis in constitutional law to do it. That is the highest I can put it.

We have a bicameral system and the two Houses of Parliament must join in. This time, one of them joins in at its peril. It loses the power to make a decision on an important matter on the threshold of what might be a long process aimed at dissolving parts of the country. It is not a small debt claim or something similar; this is the big league. That is the best answer I can give. It is a weakness of the technique. I have read everything I could to find out why they bothered taking that chance, and I could not find any explanation. No one asked the question.

Senator Kroft: The fact is that you define losing as not gaining something rather than being deprived of something you once had.

Mr. Estey: You had it but it was embryonic. You have lost it before it was born. It was a real right. When that bill was conceived, it normally would not have carved up one of the parents in the birth process of that statute. I do not know what difference it makes, counting noses, how they will vote, whatever. It seems strange. There is no basis in law to do it. I could not find any place where there was this strange performance where you pass this bill and you lose that power down in the first section.

Senator Kinsella: Mr. Justice Estey, I have three simple questions. Is it your view that, under constitutional law in Canada today, Canada is indivisible?

Mr. Estey: I knew someone would ask that. That is a great battle. It is and it is not. It is indivisible because there is no mechanic around to allow it to be taken apart, but nothing in the universe is beyond division -- nothing, not the size of the earth or the distance to the sun or definitions in the law. I cannot say it is indivisible and I cannot say it is divisible. Clearly, it is not divisible by constitutional means until you amend the Constitution. It is divisible if you amend the Constitution, and potentially you always have the right to do that. It is not an easy thing to pull those two meanings apart. I think offhand I agree with the 1998 judgment or advisory opinion that it is indivisible, because that is in the present tense.

Senator Kinsella: Minister Dion told us on May 29 that he knew that Canada was divisible before the court reference.

Mr. Estey: I read that.

Senator Kinsella: That statement therefore could not have been on the basis of the court reference, because he knew that before the court reference, nor could it be because of the court reference, because the court reference does not go there.

Mr. Estey: I read that. Like a lot of other material I have read here, I could not figure it out.

Senator Kinsella: My second question is as follows: In sum, is it your advice to this committee that Bill C-20 is ultra vires to Parliament?

Mr. Estey: What is that question again?

Senator Kinsella: If you take the bill in toto, as we have it, is it basically ultra vires to Parliament?

Mr. Estey: No, basically, it is not. The same goal could have been achieved constitutionally, and that is what I was mulling over a few moments ago. I do not know why they did not take the paved road. They have taken the gravel road, and it is full of bumps. People like me come along and pick them apart. No, it is not inherently unconstitutional. It is unconstitutional, I think, because it is an error in judgment.

The Chairman: It is unconstitutional because of an error in judgment?

Mr. Estey: No. I say whoever wrote that statute could have gone down another path without any quarrel, but the path they chose invites the debate that we are having.

Senator Kinsella: My final question, Mr. Justice Estey, is on the matter of the role of the Senate, or the attempt to exclude the Senate. In your opening statement, you said that this undermines the concept of bicameralism, and you made reference to 50 sources of the view that suggested that that is not appropriate. At the beginning of tonight's meeting, we were given a submission from Minister Dion of examples of legislation where Parliament has given the House of Commons a role that is not given to the Senate, I assume as an argument to say that we have done this before. What is different about Bill C-20?

Mr. Estey: It is in the bill and subtracted by the eligibility of the second member of the bicameral legislature. It is carved out by the very automatic passing of the bill by that body. It is academic to talk about the granting of powers to other bodies. Hardly any statute today does not delegate power to someone. That is the way they shove the work down to some other level. That is how you do it.

You cannot give away your power to legislate to anyone in the any of the provinces. You cannot do that federally. You can delegate administrative actions. The P.E.I. potato case said that the federal government can authorize a provincial board to inspect potatoes. They went the other way one year later in Nova Scotia where they traded off with the federal government, like two ping-pong balls going back and forth, carrying jurisdiction assignments, and the court stamped the whole business out, saying it was wrong and fundamentally conflicted.

That is not the problem here. The problem in this particular case is what was going on, and it was a trigger movement. It will happen only if and when the Senate passes the bill.

It is an unusual one because it is an interdelegation of equals. It is not an administrative recipient or an administrative act. It is a legislative constitutional act. That may all be without consequence, because that is an argument. I do not want to say any more than. That is the best dissection I can do to find out what happened. It is all arguable. It is not necessarily correct. I have been in front of the bench and behind the bench and I know that I was right more often in front than I was behind and I should never have left.

What you say is absolutely correct. The minister's letter is correct as well, but he is talking about something else.

Senator Kenny: I should like to return to Senator Kinsella's first question regarding the divisibility of Canada, or of any country for that matter. If I understood you correctly, you said that, except in the present tense, that is not a clear question. History has shown that countries do not last forever, and I think we accept that.

If a large group in a country wants to separate, is it better to have clear rules determined in advance of the process or is it better to make them up on the fly and accept the instability that goes with that?

Mr. Estey: That is a tough question. I think it is better to play the piano from sheet music than by ear. To the extent that politicians are musicians, that might solve something.

I think it is inherently superior to have rules of the road before you start the drive. I should think that it is better to have something in the Constitution with regard to how you can release someone who wants out. The downside of that is that having that door open provokes people to jump off the tram. I suppose it would be even more enticing if they had a ticket in their pocket that would allow them to jump back on. We are better off to have rules. I do not quarrel with those plans. The concept is correct.

Senator Kenny: The fear seems to be that simply discussing the possibility of separation implies that there will be separation. I take it that you would agree that people will do what they will do, and that if they are going to do something they should do it in an orderly and reasonably predictable way that will minimize social disorder.

Mr. Estey: I spoke with a man who was at a high level in the Czech bureaucracy, which split from Slovakia. They did not even have a meeting, but simply fell apart. I asked why they did that. He responded, "God only knows. We are trying to get back together."

Change is part of our life now, and I think we should grease the wheels a bit and plan it better.

Senator Murray: Mr. Estey, as a layman I have been struck by the sharp difference in views on the binding nature or otherwise of these advisory opinions. The minister came here and asked rhetorically whether this was binding. He answered that it is. A number of people I consider to be eminent constitutionists have told us that it is binding. Some went so far as to say that this is now "The Law." What are we to make of an advisory opinion that says, as this one does, that the obligations identified by the Court are binding obligations under the Constitution?

Among those obligations, as you know, is a new wrinkle: They want to add to the amending procedure an obligation on all the parties to the amending formula to come to the table if one of them takes an initiative to amend the Constitution.

Mr. Estey: It is easy to answer whether an advisory opinion is binding. First, it has no judgment at the end of it; no judgment that can result in the sheriff going to someone's door and seizing property, and no judgment in the sense of the collection of damages.

If the nine members of a court express a unanimous opinion, you would have to be a fool to challenge it in court. That will not fly. On the other hand, you can wait until a couple of the judges resign, retire or die and a couple of different-minded souls get on the bench who, by questions, invite reversal. The older an advisory opinion gets, the less valuable it is, for that very reason. There is no one to defend it. That is another reason that an advisory opinion is not binding, in theory. In fact it is binding if you are going after the same people. The concentration of thought is all against you. On the other hand, an advisory opinion that is 50 years old it is not worth very much.

If I remember correctly, there is an example of that in the broadcasting field. There was an advisory opinion on technology. The judgment was delayed and the technology was dead before the judge signed the reference. It was not binding on anyone. That was not very good advice in advisory form.

Whether it is binding depends on circumstance. There is no rule of law that says whether it is binding. Theoretically it is not binding, but practically it is because no one will change it until a few people die.

Senator Christensen: I should like to expand on the question that Senator Kroft asked. It seems clear in clause 3 of Bill C-20 what the process will be once it has been established that there is a clear question and a clear majority. The role of the Senate in the constitutional changes seems clear.

What role would you see the Senate playing under Bill C-20 in determining the clarity of the question and the clarity of the majority, given the time constraints that the government would have at that time?

Mr. Estey: Are you asking what would happen if the House of Commons was left with the job of judging clarity and the Senate was excluded?

Senator Christensen: If the Senate was included in determining the clarity of the question and the clarity of the majority, what would the Senate's role be, given the time constraints?

Mr. Estey: Are you asking about if it were sitting alone or sitting with the House of Commons?

Senator Christensen: I am asking about if they were sitting together as a bicameral government.

Mr. Estey: It would not make any difference if the Senate voted the way the House of Commons did. It would make a world of difference if the Senate voted the other way. It is difficult to discuss that because we do not have a statute that sets out how the votes would be counted. Do you put them in the pool and put the ballots in the common pool and count the vote, or do they vote in their own pool and you hope it will be the same? There are other combinations. However, we do not have an opportunity to examine them.

There is a role and there would have been a role if they had left things alone and named them both. While I am not necessarily saying that it is all downhill or uphill, it is different. Nevertheless, we do not have the benefit of that because they left it out.

Senator Christensen: Do you see it as the Senate sitting in a committee with the House to review the bill and to give advice to the House, or do you see it as legislation created by the House of Commons on the clarity issue, which will be put to the Senate to review and pass?

Mr. Estey: As I read the bill, it is a fact-finding, decision- making assessment of clarity, and so on. There are different definitions in the bill, as you know. I cannot see it as a judgment. Those kinds of judgments are made every week by administrative tribunals, both the CRTC and the CTA in this city, and workers' compensation boards all across the land. They are all making those very findings on their own, with a mixture of technology and law and everything else.

The most common method the community has now for the settlement of difference is the administrative route. I think the Senate has been left in a better position here. It has the task of reading the instructions in the act and then voting either yes, this is clear; or no, that is not clear, and so on.

Senator Chalifoux: We have had several aboriginal nations from Quebec come here. Treaties were made in the 1700s and 1800s, and modern treaties were made with the Cree-Naskapi and with the aboriginal people in Quebec. In this bill, they are to be consulted and have the same role that the Senate has. What you role do you see them having, and how does that affect any referendum question regarding any inclusion of the aboriginal nations from Quebec?

Mr. Estey: At the beginning, maybe not much. However, before the day is done and the sun has set on these operations, aboriginals in most of the provinces will have a substantial position to demonstrate. In some places, they have a tough hill to climb because it is complicated. With others, like the Nisga'a litigation in Western Canada, they have come to an elaborate conclusion that must have involved literally hundreds of thousands of person hours trying to figure it out. That is not a divestiture: it is a reorganization by recognition of who owned that land anyway.

I think the aboriginals have a complicated and sometimes uphill struggle to maintain a foothold on what they regard -- and not without some merit -- as their land. That is to say, it is their backyard, so what are you people doing in it? This has been going on in Western Canada for a long time. In Saskatchewan, the Louis Riel rebellion revolved around that and those claims have never been settled. Nisga'a involves a huge settlement of hundreds of millions of dollars and 950 square miles of arable land. Those are big issues. If you are to break up a country but you have aboriginal claimants to title and other people who bought their way into the country and were born there long after the aboriginals were pushed away, those kinds of issues are almost impossible to resolve. However, they must be settled somehow. I do not see how you can avoid having them included on this issue from the start.

Senator Chalifoux: In your opinion, if Quebec secedes, should the aboriginal nation have an input into the clarity question and into the issue of the majority?

Mr. Estey: I do not see how it could do any harm. Maybe there is no provision for it. The bill does not say that they will get a chance to participate in how the question is asked, but why not? They will be affected.

In Quebec, they already have treaties covering enormous areas. A very complex one is the 1783 Order in Council. Appended to some versions of it was a map. Across part of the map, halfway between the Saint Lawrence Valley and the Hudson Bay drainage basin, printed in a fairly crude fashion, were two words: Indian country. They have a claim and I am sure that they would like to be included in the process.

The Chairman: Mr. Estey, I am not a lawyer, so I want to be sure that I understand your reasoning. From what you say, I take it that there are large parts of the secession reference opinion that you do not like, but there others that you find more or less okay. One of the parts that has loomed very large in many of our discussions is the court's insistence that when it comes to a matter of secession, there must be a clear question and a clear majority. Furthermore, the determination of what is a clear question and a clear majority must be made by politicians, and the vast majority of the references are to elected representatives. Do you agree with the court's reasoning there?

Mr. Estey: Yes, I think so.

The Chairman: Could one then see Bill C-20, which, like any human instrument, presumably is imperfect, as an attempt to reflect that reasoning by the court?

Mr. Estey: Undoubtedly, that is right. I am not knocking it. In fact, I have a lot to say about the bill, but of all the provisions, I have mentioned only two. The rest have survived.

This is a strange bill. It is put together in a strange way, as though it had many authors. I cannot understand how they arrived at the arbiter of the meaning of "clear." It just states that we have the House of Commons and we might as well use it. On the other hand, it infers that they do not think they should have politicians who are not elected involved in it. That is funny, because the body that is not elected, namely the Senate, has the job of approving the entire bill, as well as the interpretation of the words "clear," "fair," and so on. It does not make much sense, but that does not eliminate it from being adopted.

The Chairman: Indeed.

Senator Grafstein: I want to return to the constitutionality of the bill, with the niceties. I put to other witnesses this proposition that even if I chose, as a senator, to give up my express legislative power under the Constitution, I could not do that and still have a constitutional bill. Is that a fair conclusion that I should reach as a senator who is part of the constitutionally entrenched bicameral system?

Mr. Estey: I do not quite understand your question.

Senator Grafstein: Even if I chose to delegate my power as a senator to the House of Commons, could I do so?

Mr. Estey: No.

Senator Grafstein: What if we proceed with this bill unamended? You have said it will fall to the ground unless the Senate is included. You use that term, "fall to the ground." Does that mean that it becomes a nullity without the Senate being included?

Mr. Estey: If I understand your question, if you had a designated power under the act and you surrendered that to the House of Commons, would that be lawful and proper? I would say no, that would not be proper. You cannot do that.

Chief Justice Rinfret said it all in a very short sentence back in the days of short judgments. He said that the authors the Constitution intended that these designated undertakings will be performed by the people we name and by no one else. You cannot abdicate or duck your obligations. You must perform them, whether you like it or not. It was a very hard-nosed judgment in 1951 and it has not been bent, twisted or rusted. That is the law.

Senator Grafstein: We all agree that the rules of the road would be preferable. Tell me if this is fair or not: When you say we should have rules of the road in this difficult situation, you are talking about lawful rules of the road, constitutionally respectful rules of the road, and not new rules that have no fundamental basis in the Constitution? Is that what you mean?

Mr. Estey: Yes.

Senator Taylor: Justice Estey, I come from Alberta where your name is almost a household word. To be able to see and hear you in person is quite something. My nerves have settled enough that I can ask a question.

I wanted to pursue the question begun by Senator Kroft and Senator Grafstein, that is, the question of the place of the Senate. You indicate, on the one hand, that you cannot circumscribe the Senate but, on the other hand, I got the impression that the executive can call in the House of Commons if they so choose, without necessarily calling in the Senate to give advice. I have two questions on that matter.

The House of Commons is set up on representation by population. Let us forget Quebec separation for the time being and pretend we are looking at Alberta or B.C. The House of Commons now has 59.3 per cent of its members from Ontario and Quebec. In the Senate, those two provinces have only about 46 per cent of members. The regional balance, which becomes quite important here, is one reason to deliberately bypass the Senate because you would not want to hear the regional voice.

Mr. Estey: It is overloaded.

Senator Taylor: It would be overloaded against you if you indeed have most of your representatives from Ontario and Quebec. How do you read that?

Mr. Estey: I read that the same way as I used to read the struggles I had as a young lawyer. We had a choice of judges in those days. I had bad judgment. I hardly ever got a good one. Trying to load the bench does not work.

Senator Taylor: It obviously developed your skills.

Mr. Estey: I can understand there is more than a little merit in what you have said. That may be the very reason. Because the basis of distribution is quite different, the vote coming in would be reflective of quite different areas.

Senator Taylor: That is exactly what I was thinking. The Senate can be left out. If the administration decides the Senate is more friendly because of the regional concept, could they then say, "Forget the House of Commons; we will take the Senate."

Mr. Estey: The Americans do that. You do not go through the House of Representatives unless you cannot help it. The Senate is scattered around. Every state gets two representatives. They have strong faith in the geographic and not in the demographic.

Senator Taylor: From some of the reports we have heard, the people who give key advice, as well as the minister himself, have a record of not being very enamoured with the Senate. Maybe they did not want the regional voice.

That leads to a second question: Can this precedent of leaving the Senate out of a bill which has a separation motif also be used when issues of minority rights or minority languages arise? You come from the west. Perhaps in a new energy policy proposal, we could decide not to let the Senate speak, particularly if 60 per cent of the seats are from energy-consuming provinces.

Mr. Estey: That was a bitter battle, fought in a very bitter way in the dying days of the NEP because of what you are discussing. The people who made the rules lived in the Ottawa Valley and the people suffering from the rules lived in the foothills of Rockies. That awakened many people to the merit of having the balanced representation that the Americans have and that we do not have.

Senator Taylor: Could this bill be used as a precedent if another bill arises which does not involve separation but involves minority languages or energy? Can the government decide not to consult the Senate just because they do not have the votes there?

Mr. Estey: You put it right out in the open then.

Senator Taylor: We might as well call a spade a spade.

Mr. Estey: That might lead us to where we started, about 20 years ago, to adapt the Senate to that concept. Somehow we got waylaid. I do not think there is anything inherently wrong either way.

Senator Joyal: Mr. Estey, I have two questions. The first relates to the status of the Senate. Suppose that the bill is amended and passed with the Senate reinstated in clause 1 and clause 2 of the bill and sent back to the House of Commons for approval. If the House of Commons decided to strike down those amendments, in your opinion, what would be the status of the bill?

Mr. Estey: The bill would be in a confused state, I believe. That may be the way democracy operates sometimes. This is an internecine war that has no consequence. I do not understand why, with all the problems we have in this world, we generate one which is a human creation entirely and has nothing to do with the rest of nature.

Seeking out a tribunal to say what is clear and not clear is not the most difficult thing in the world. Juries are sitting in Canada every day making much more complicated decisions than that and without any training.

It is somewhat sad to me to see that the progress of preparation for whatever lies ahead of us is being complicated by this sort of digressive difficulty. You people know the background of the whole thing, and I do not. There may be an explanation which makes sense, and I heard one just tonight. On the whole, it is a time-wasting, expensive detour on the way down the road of setting up some machinery to deal with all these questions which none of us likes to address. We do not like to contemplate someone leaving the family. We must do it and I think it is too bad that we have this difficulty right in the foreground. It is not a profound difficulty; we simply must find a suitable tribunal to make a dictionary decision.

Senator Joyal: My second question relates to the ruling in 1998 on secession. The court was asked simple questions. First: Does a province have the right under Canadian law to self-determination? Second: Does a province have the right to self-determination in international law? Third: If there is a conflict between Canadian law and international law, which one prevails?

You will remember that the court said "no" to the first question, that no province has the right to self-determination under Canadian law, that is, under the Canadian Constitution; nor does it have it under international law. That was the legal answer the court provided to those two simple questions. It was clear. The answer was "no."

Mr. Estey: What year was that?

Senator Joyal: That was 1998.

Mr. Estey: There was one carbon copy underlying that which was older. I thought you started with that. It was an older case. It had to be, because I sat on it. I remember wringing my hands about what a wasteful thing that was. That is the 59-page one I was talking about.

Senator Joyal: Let us go back to the 1998 one then. The court has said "no" to those two questions. No province has a right to secede or to self-determination under Canadian law. A right is a right. A right is not a possibility. If you have the right, you can go to court and have that right enforced by the court. The court has said "no" to this.

By saying "no" to those two questions, can we conclude that the Government of Canada has the obligation to maintain the territorial integrity of Canada and, as such, recognizes that Canada as being indivisible? Can we then conclude that, legally, no province can force the Government of Canada to divide Canada?

Mr. Estey: Yes. It was said so poetically for us by Abraham Lincoln. No one wants to build on that, but it is very clear in our law that is correct. Unless you can find the power in black and white in the Constitution, you cannot do it.

Senator Joyal: When we were told that the Supreme Court of Canada said that Canada is divisible, that is not exactly the interpretation of the ruling of the court.

Mr. Estey: You are talking again about the advisory of 1998?

Senator Joyal: Yes.

Mr. Estey: The other `98 was a gold rush. I do not know.

I stay with what I said earlier about advisory opinions. They do not bother your conscience the way a judgment does. You know that someone smarter than you will rewrite it anyway.

On the issue you raise, you clearly cannot dismember a state unless you are authorized to do so. In the American Civil War, there were many great statements made about the inability, with a conscience, to break up a community. You had to have some way to do it by lawful, peaceful means or you did not try.

We have strayed away from that because of the roiling of countries in the Central European and Eastern European areas as well as in Asia where it used to be that blood was cheap.

We should plan prospectively on these things, distasteful as they are. No one likes to see a divorce in the family, so we hang back. That is the wrong. We should not do that. We should put the house in order legally and let the facts fall where they may.

Senator Pitfield: If we go back to the rule of law, that talks about a system in which the citizen is encouraged to do whatever he wants to do, as long as it is not prohibited; and state is discouraged from doing what it should not do, and certainly cannot do anything that it is not specifically authorized to do.

My other point is that access to superior courts is guaranteed to all who wish to iron out their differences. Is that not really the situation we are talking about, that we want to enquire into the authority that the legislative arm has for doing surgery on itself? Can the courts do away with my decision, or can the government, the Crown, by a simple authority, assume the right to take one institution, one of the three principle institutions in the Constitution, and take it apart, or so undermine them that they can gradually pick them into pieces?

If the state cannot, then can we in Canada have the sort of result that you have in the Mr. Justice Marshall case in the United States, where he was dealing with warring departments of state and he was told that his rulings would not be observed by the government, and he said that that would not happen so long as that court sat? Is this the route that we are heading down? Is there any alternative?

Mr. Estey: I am interested that you referred to Mr. Justice Marshall. The more judgments I read of that man, the more I marvel at his mental powers.

I find it difficult to answer your question because you have forgotten more about the role of government and the range of government than I will ever know. I remember you were Clerk of the Privy Council at one stage. Things have not run so well since. You had better hop back there.

To answer your question, we are headed down the road of reigning in state intervention. I do not know the true controlling reason for that. I can think of many sub-reasons for it.

One of them is that the population now is vastly better informed of what is going on in and out of government, in business and everything else.

A second one is that we have more leisure time to engage in this combat.

A third one is that you are liable to be walking down the street some day and see some fellow half asleep on a park bench, and that person will be a lawyer. That is to demonstrate that the pace is not always on the fast track even for professionals, so people have time to contemplate.

The answer is all rolled up in the level of knowledge. It is reaching tidal wave proportions now where almost no one can manufacturer anything without an engineer because a lawyer will sue them for the slightest defect. That is called "advancing civilization." The taxation system is the same. It is a game now. You get caught playing the game, you pay the penalties and go on to the next trick.

Senator, you raised a significant question. I do not know the answer. I think the role of the state is changing hourly. We are trying desperately to cut the costs of the state.

Senator Pitfield: You spoke a great deal about doing away with the Senate. We really do not look very much at the sort of things the Senate does and that the Senate was set up to do.

I have always been struck by the fact that this was a very common type of institution in North America and in the empires of various colonies in their time in the mid-1800s. These chambers were an answer to the shortage of other bureaucratic fighting methods. There is a part or role of the Senate in supervising bureaucracy and in supporting the ministry in that sort of activity. That is my submission.

You, sir, have a great deal of experience in the senior levels of business, where the bureaucratic supervision role also exists. This requirement for business leaders to give the sort of supervision is what I am submitting the Senate can help do as well. You also distinguish with regard to crossing out of the private sector and working in government. God knows that is something of which we really need more.

The beauty of the institution of the Senate, whatever one decides to do with it, is that it is so well located and it is plugged right in and its connections are all natural. I think you will agree that is the sort of interfunctional connection that you want to have when you are putting together an administration as complex as a state or a large corporation. My question is: What has gone wrong?

Mr. Estey: Nothing much is going wrong. Things are normal, they are confused and we are slow. It is funny thing is that the rules do not mean anything. We used to hear all over the place that the reason the state was getting so big and lopsided was because it had no pruning mechanism to cut it down like a shareholders' meeting or an auditor.

You and I have had experience to show there is a significant fallacy to that idea. Big business is encumbered with the same growth of fat as the government, and it may be more difficult to chop it down. I do not think anything has gone wrong, we are just getting smarter.

Senator Cools: Mr. Estey, my question relates to the duty of the Crown. I am switching gears a bit. My questions are about the duties of honour that the Crown owes to the citizens of Canada.

My question flows from some stimulating and disturbing evidence that was put to us by two gentlemen one being Mr. Claude Ryan, from Quebec, and the other being professor Peter Hogg, from Osgoode Hall. This evidence is in respect of Bill C-20, particularly the fact that the House of Commons, one chamber only, will be making a determination about clarity.

Mr. Ryan spoke about Bill C-20 having a virtually visceral distrust of the National Assembly and of the Government of Quebec. Professor Hogg, in regard to the Parti Québécois said that he suspects that they like to ask confusing questions.

These testimonies are unrelated in many ways, but this theme continues to recur, which is the expectation or the anticipation that the Government of Quebec, the Premier of Quebec and the National Assembly of Quebec are simply not to be trusted.

I know of no other piece of legislation or any other piece of proposed legislation that has ever been written with an anticipation that a government, a premier, a National Assembly, and or a lieutenant governor could act dishonourably, dishonestly or deceptively toward their populations. My reading of history and particularly of the British Constitution has always taught me that the law cannot assume that the Crown can act or would act dishonourably.

These witnesses, particularly Mr. Ryan, brought before us the fact that Bill C-20 anticipates poor behaviour and conduct and has targeted the National Assembly and the Government of Quebec.

Perhaps I have not made myself clear, but my understanding has always been that a principle of responsible government and legislative drafting in responsible government is that the law must assume honour on the part of the Crown; would you agree?

Mr. Estey: I do not know about that. One happy decade of my life I did nothing but tangle with the Crown. I learned more things there of what not to do than anything since.

The Crown we have is a great mask that we put things on that we do not really like, such as the Crown prosecutor in some towns -- a mean beggar, and you are stuck with him because he is the only one they have. The Americans laugh at us for using the words "the Crown." They think that is a mental retardant sign that we have shrunk back and are not on our own yet.

I think the Crown is like everybody else. They have inadequate personnel, brilliant personnel, and everything in between. I used to think they had better lawyers in their employ than was average in private practice. It has gone around the other way. Perhaps I was wrong. I think now it is the other way around. Private practice attracts more of the good lawyers than does Crown practice.

The fiction of the Crown is a good one. There are many distasteful things that have to be done by the state that cannot be done any other way, such as expropriation. We do it with this mythical "Crown business." It was not Joe Blow who came along and took away your barn; it was the Crown that did that. That seems to make it a little better.

The Crown is the centre of executive power. In Canada, it is not only that, but it is also the centre of legislative power. Nothing is the law unless it goes through the Crown. It is a funny expression, and it has lost a lot of its meaning. As to people saying that politicians are a bunch of crooks, that is finally beginning to wear out. The newspapers can perhaps claim some credit for that. They do not print nearly as much nonsense about public officers and elected people, although I notice that it is rare that anyone ever says, "I thank that man or woman for giving up part of his life to govern my community." We are not like that. That is a deficiency, I think.

I do not share that view of the Crown. I think the level of honesty in our country, and I hope it continues, is high. We do not have anything like the disruptions south of the border and in Europe and Asia. I do not purport to know the answer, but I think it is a better situation here.

Senator Lynch-Staunton: I am one of those who feels that the court went too far in its opinion. I think it should have stuck to answering the three questions and giving the reasons for those answers and limited the opinion to that. Instead, it opened up, in effect, a new subject by tracing conditions under which secession could take place and gave legitimacy to secession. My personal opinion is that it went too far and has led to a bill that is a political opinion and, to my mind, is not necessary. I want to stick to the reference. Do you think it was wise for the court to go as far as it did in going beyond the answers to the questions? Do you think that was helpful?

Mr. Estey: In what judgment?

Senator Lynch-Staunton: In the Quebec secession reference.

Mr. Estey: In the 1998 decision?

Senator Lynch-Staunton: Yes, the 1998 one.

Mr. Estey: You have to be careful when you answer anything in public in this day and age. If I answer, I sometimes get more attention than my answer is worth.

Senator Lynch-Staunton: That is why I am asking you.

Mr. Estey: In a general way, first, I do not like that judgment much. It is part of the prolixity of the 21st century. The first two-thirds were not required at all. The last 10 pages have it all. Much of it does not really bear tight reading. It was not stitched together very tightly. That may be because it is an advisory opinion. There is a lassitude about that that you do not have in adversarial litigation.

I think it was a wrong approach in parts of that judgment to lean so much on history when we do not have any history in that field. Why should we borrow someone else's used cars? I am with you on that, senator. However, I would not like to defend all the judgments I wrote. I was interested in it, but it was off the target 50 per cent of the time.

Senator Lynch-Staunton: My other question is on the subject of whether this opinion is binding or not. I was interested in your answer. However, it conflicts somewhat with former Chief Justice Lamer who, shortly after his retirement in an interview with Le Devoir, was quite categorical in saying it is only an opinion and not binding. I suppose you would answer and say that technically he is right.

Mr. Estey: That is pretty close to what I said. Tony had a good way about him. He did not take himself very seriously.

Senator Lynch-Staunton: Shall we treat his judgments that way, too?

Mr. Estey: I think too much has been said already about that. They are good to have. Once in a while, there is a good use for one of those things, but on the whole, if you want the truth, you read the litigation cases.

Senator Lynch-Staunton: If I may be allowed for the one and only time in my life to correct a former Justice of the Supreme Court, it is the worker bees that go out and collect the pollen, not the drones. As a former beekeeper, I think I am on safe ground in saying that.

Mr. Estey: Those drones do not do anything.

Senator Lynch-Staunton: They have a fun time fertilizing the Queen. The Queen is good for two years. Thank you very much.

Mr. Estey: Don't start a scandal in the beehive now.

Senator Sibbeston: Mr. Justice Estey, the government said, when they appeared before our committee, that the clarity bill is just an executive act. It spells out the way that the government will handle the whole issue should there be another referendum. I am wondering whether, as senators, we are perhaps a little sensitive at being left out in not having the same role as the House of Commons in dealing with a resolution. We are perhaps being a little bit too sensitive, particularly if this is all just a government executive act. The government makes decisions every day, and certainly the Senate is not involved. Without question, our role is to deal with legislation. We deal with legislation and pass it.

Could this clarity bill simply be seen as an executive act? The government has said it does not have to even provide or put forward such a bill, but they have decided to set it out just so there is some clarity in terms of how the government will act and behave. In your examination, could it be construed as such? It is purely the manner in which the government will deal with the issue. It will have the House of Commons involved just so that the decision is not made solely by the Prime Minister or cabinet. It wants the House of Commons involved, the elected people of the country. Is it possible that it can be construed as such and simply left at that, rather than us making more of it than that?

Mr. Estey: There is a lot in what you say, senator. In a way, you stir up a lot of dust by running around in that kind of a situation, and you will not produce a great beneficial result one way or the other. You have probably touched on something, though. Whatever you say, there should be standards imposed on honesty and truth. They reflect on the people that you just heard, because nobody else would have caused that remark.

When you start to tighten up the rules on a referendum question, there is a kind of automatic undercurrent of dishonesty in the representations: they pulled it off in the past, so let's cut that out in the future. There is that element hanging over it. It is a good idea to keep the high-level politicians out of the line of fire and keep the calibre of the weapons a little lower. I never thought of that. That is probably one of the reasons for it.

To go back to where you started -- you are right -- the government can harness any element of the government to do anything, except where it is unfair and expensive. If they want to hire the House of Commons, on an isolated basis, to do something not legislative, there is no reason they cannot do that. What you cannot do is give away your legislative power to another body, but that is not what is going on here. You make an interesting observation.

Senator Sibbeston: In the eyes of government, this is what makes this bill legitimate, and why it feels it is on strong constitutional ground to pass the bill that it has before us tonight. If it is seen that way, then I would think there is nothing unconstitutional about it, but if you get into questions of whether the country is indivisible and whether, somehow or other, the Senate's constitutional duties are somewhat adversely affected by this bill, then it becomes problematic. If it is just seen as an executive act, can it pass and be fine, in your view?

Mr. Estey: That kind of a problem does not lend itself to a mathematically precise solution, or recognition even. It is subjective rather than objective. I suppose bruised feelings are part of the whole thing. I go back to my original lament that this is an important voyage we may be setting out on, and we better get it right. I am in agreement that we should have this kind of legislation, but we have to get it right.

Senator Kroft: Mr. Estey, we began with the discussion of whether or not this bill involves the Senate giving up a power. I suggested it was not giving up something because it never had it, but you were persuaded, and we are not. It is not a level playing field when it comes to each of us having an opinion, but I would like to ask you the following. I am thinking of two other situations about which I would be interested in your reaction regarding how they happened. I think of the former Divorce Act, where the House of Commons gave up its power to pass divorces, which the Senate had, and that was a pretty important act to those people involved but, on the other hand, it was not a law of general application in the same way, and you could distinguish it.

I would also be interested in your opinion about those -- and there may be some in this room, although perhaps not -- who voted in the Senate, on the Constitution Act, 1982, to give up the ultimate right of veto. I am not clear in my mind, following your line of thought, where the senators who voted on that Constitution Act found the power to give up their right of veto that you are suggesting senators would not or should not do in this case.

Mr. Estey: You are going back in history. The first thing you touched on was the federal Divorce Act. That was a real evolutionary jump because we moved from the British courts, Las Vegas courts, and the Senate all granting divorces, until one smart lawyer from Alberta figured out that the courts of all of Western Canada could grant divorces. We became the Las Vegas of Confederation, briefly. We got that cleaned up, but it was tough going after that for awhile. That just shows you how a lot of the things we envision as clear are warped, and the further away you get from it, you can see the warp. It is easy now to see what was wrong in the 1951 or 1952 Divorce Act.

Senator Kroft: What about senators giving up the veto in the Constitution Act, 1982? That was a significant power.

Senator Beaudoin: That was an amendment, not a statute.

Senator Kroft: It still involved a statute, and a vote of the Senate. The senators voted quite clearly, and I am sure everyone in that chamber that night was very conscious of the fact that they were giving up a significant power.

Mr. Estey: Who gave it to them in the first place? How did the Senate get that veto power, if you remember?

Senator Kroft: What about the British act of 1911 where they gave up the right over money bills? The Senate has, by various acts over the history of British Parliament, reduced its range of authority, and I am just looking for an explanation as to how the power was found in one case and not in another.

Mr. Estey: I do not know. I cannot answer that. There was a lot of sloppiness in our legal history, I will tell you, and when you look back on it, you wonder how we ever survived it.

The Chairman: Mr. Estey, we thank you for being with us, and for surviving us. It has been an extremely interesting session.

Our next witness is Professor David Smith of the Department of Political Studies at the University of Saskatchewan in Saskatoon. Professor Smith, thank you for coming east to join us and enlighten us.

As you probably realize, we follow a normal practice of having a witness make a presentation and then we go to questions and answers. Professor Smith, I believe you do have a presentation to give us, so please proceed.

Professor David Smith, Head of Political Studies, University of Saskatchewan: Madam Chair, I would like first to thank you for inviting me to appear before you tonight. I will start off by saying that I am not a constitutional lawyer. Everything must be put in that context. However, I have studied political institutions and the structures of federalism in Canada. It is in the context of that background and a current interest in bicameralism that I wish to frame my remarks on Bill C-20 today.

From reading press reports and evidence presented to your committee in recent days, I understand that one focus of concern about Bill C-20 is its implication for the operation of Canada's parliamentary institutions. It has been said here that, because the clarity bill limits the determination on whether a referendum question is clear, the Senate "disappears as a chamber." That assessment has been confirmed, although depreciated by constitutional authorities, such as Peter Hogg. Dean Hogg observed:

...the only power that you have lost is the power to participate in the question of whether the referendum question is a clear one and whether the referendum majority is a clear one.

Thus, there is a difference between the two judgments. The second is qualified, since it views the limitation as confined to a single specific instance. By contrast, the first is absolute.

What is the implication of Bill C-20 for the operation of bicameralism in Canada's Parliament? There is no doubt in my mind that Bill C-20 discards bicameralism, that for the purpose of the proposed clarity legislation it treats Canada's Parliament as an unicameral institution. Now, the government offers reasons for this tactic -- reasons I will examine later -- reasons some will find convincing, practical, and even prudent. Whatever the view taken of this strategy, there is no doubt that, for the purpose the bill is intended to serve, Canada's bicameral Parliament ceases to function as the Constitution set out it should function.

Something else happens when the deliberation of two chambers is replaced by the determination of one. The Senate, just as much as the House of Commons, is a representative body. Senators represent regions or provinces, which in some instances are treated as regions in themselves. Members of Parliament represent people. As used in that last sentence, the word "representation" refers to the calculation and assignment of representatives. Representation, in the sense of the embodiment of interests, is another matter. Both chambers embody interests. Interests, it must be stressed, do not have a life of their own. They do not exist independent of people.

Much has been said about constituencies in the House of Commons and community of interest. Much less has been said, however, of the Senate, which represents regional, sectional and minority interests in Canada. I hasten to add that the Senate is not alone in this activity, but it carries out its work in an unique forum.

An example of the Senate acting in this manner was the work of the Standing Senate Committee on Legal and Constitutional Affairs during the passage of the constitutional amendment involving Term 17 of the Terms of Union with Newfoundland. Throughout the extensive hearings, the Senate held fast to its concern that the voice of affected minorities be heard. The contrast between the attention the amendment received in the House of Commons and the Senate was marked indeed.

Senators, I realize that these are laudatory remarks and that in making them I am speaking to a receptive audience. My interest is not to "lisp sweet words" but to substantiate the following argument: To excise the Senate from consideration of the referendum question is to silence the expression of Canadian opinion. Representative institutions are about more than the calculus of government, although quite clearly the considerations of government are real, necessary, and inevitable. In short, although it may be seen as a matter of convenience, to exclude the Senate is no small matter.

Two Houses producing two decisions on the degree of clarity found in a referendum question could be awkward. Their labours might even result in something worse -- they could reach contradictory conclusions. Still, they would each bring, as the Constitution intended they should, different perspectives reflecting the range of interests that the Fathers of Confederation decided they should serve.

To abandon bicameralism at the moment the Canadian federation faces its greatest test is to abandon the principle that made Canada possible as a plural society in the first place.

Mr. Dion has said that the reason the Senate is given a different role from that of the House of Commons is "not connected with these 'elected representative/political actor' phrases which are intangibly used. It is connected with the fact that the government is responsible to the House of Commons."

I must say that I do not understand that rationale as applied to this particular bill. This is not a money bill for which, all authorities agree, the government is responsible to the lower House. Aside from its extraordinary subject matter, what sets Bill C-20 apart from the other non-monetary legislation?

One explanation offered by the minister is that Bill C-20 actually promotes participation: "Without the clarity bill, the Senate would not have the capacity to be consulted by the government." With the bill, the House of Commons is obliged to take account of the Senate's view just as it is obliged to take account of views of political parties, provincial or territorial governments and legislatures, and representatives of aboriginal peoples.

However, if it is the case that the government may dispense with one chamber of Parliament, why could it not, by the same argument, dispense with the other chamber? Some reference to the Royal Prerogative has been made. In his testimony, Mr. Dion said that "this prerogative is plenary and can be limited only by legislation." I think that assertion is open to question. There is prerogative and then there is prerogative. The prerogative to conduct foreign affairs should not be confused with the prerogative to make law. According to such constitutional authorities as R.F.V. Heuston, "The Monarch without Parliament has no general legislative power in the realm."

Not only is Bill C-20 substantively flawed because of the institutional imbalance it would introduce, but it has no precedent as far as I am aware. It is no answer to say that constitutional amendments achieved using sections 38, 41, 42 or 43 of the Constitution Act may be made with or without a supporting Senate resolution -- the so-called suspensive veto. Even in these instances, the Senate may delay passage for 180 days, and then the contentious resolution must be re-adopted by the House of Commons.

Are these constitutional provisions relevant to Bill C-20? Does Bill C-20 fall within sections 38, 41, 42 or 43, or is it an ordinary statute, or, as some have called it, an "organic" statute? If it falls under either of the latter two, then the constitutional limitations on Senate participation are not relevant, since in either case the Senate has an absolute veto. If, on the other hand, Bill C-20 is deemed an amendment that affects the powers of the Senate or "the fundamental features or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process" -- that being a quote from the Senate reference of 1980 -- then ordinary amendment procedure is not applicable.

The government says that Bill C-20 is not tantamount to a constitutional change. If that is true, then Bill C-20 constitutes even more of a break with precedent. Nor is it one whose extraordinary justification, a constitutional crisis, can confidently be assumed to remain extraordinary. Excluded once, the Senate will be excluded again, certainly in the intense and fearful climate that will prevail if the conditions the bill is designed to meet actually come to prevail.

It is understandable that the government wishes to avoid confusion inherent in a situation such as Bill C-20 anticipates. However, it is unacceptable and, in my layman's opinion, unconstitutional to exclude the Senate from the deliberations the bill assigns to the House of Commons alone. I say "unacceptable" because I believe that debate following upon a secession referendum in a province will be conducted in an atmosphere of agitation, pressure and rancour. This is exactly the sort of situation where a second chamber may make a substantive difference to the quality and, perhaps, outcome of a debate.

As an example, I would cite the quality of debate that has attended Bill C-20 in this chamber and in the Lower House. Part of the reason for the difference is the coverage the debate is now attracting in the media. That, of course, is one purpose of parliamentary debate -- to enlighten and engage opinion as well as to reflect it.

More often than not the qualities of Senate debate reflect a breadth of experience on the part of participants, moderated partisanism, and sustained attention. These qualities will never be more needed than in the debate envisioned in Bill C-20. Yet, they will be lost when the Senate's perspective is removed from the calculus of consideration specified in the clarity bill.

Senator Beaudoin: When the Honourable Stéphane Dion appeared before us, he said that the bill is intended to be a bill. I asked whether it was intended to be a constitutional amendment and he said that it was not. Obviously, the Parliament of Canada may legislate. There is no problem there.

If it is an ordinary statute, Parliament must respect the constitutional rules governing ordinary legislation. Whether we like it or not, Canada has a system of bicameralism. It is enshrined deeply in the heart of the Constitution of Canada. Many pages of the debates of Confederation concern the Senate. In 1867, we attempted to have a country with a bicameral system at the centre.

You say there is no doubt that Bill C-20 discards bicameralism. I cannot agree more with you on this point. We have been told that one House may abandon a power or one House may accept not to be at the same level as the other. That is possible -- I have no problem with that -- but we must do it with a constitutional amendment. In other words, when it was stated in either 1981 or 1982 that the Senate has a suspensive veto, in the end they must have consulted the Senate. It was an address of the Senate, but it was adopted by Westminster in London. It was truly a constitutional amendment and we may do this by a constitutional amendment. However, if Bill C-20 is not intended to be a constitutional amendment, then it is an ordinary bill. If it is an ordinary piece of legislation, then we have to respect the equality of the two Houses. Some people will say that it is valid whether it is a constitutional amendment or not. I do not think we can say that. It is either a constitutional amendment or it is not. If it is a constitutional amendment, then we must follow the 7-50 rule. If it is not, then clause 44 applies. However, clause 44 is for small amendments and not for an amendment of this nature.

What is your opinion on this? Is the debate on a simple statute, or is it on a possible constitutional amendment or a disguised constitutional amendment?

Mr. Smith: I believe that it would require a constitutional amendment to achieve what it intends to achieve. However, I do not think it is being treated as a constitutional amendment.

You raised the point about the suspensive veto when the amending formula was altered in 1982. I see that as being quite different. There have been a number of references to the Supreme Court advisory opinion of 1998 on secession. There are many phrases in the opinion, but one that I noted in rereading it is that the Constitution has an internal architecture. I believe that is true. The Constitution of Canada does have an internal architecture, and the constitutional amendment process introduced in 1982 is an example of that. The reason that the Senate has a suspensive veto there -- at least, as I understand it -- is that it is quite logical that there would be a suspensive veto in that context because the provinces are playing a very specific role -- as you said 7-50. The provinces have a defined role. It would be redundant in the extreme to have the provinces play that role and the Senate also have an absolute veto. It makes sense, then, that you introduce a suspensive veto. However, that seems to be beside the point to this issue, because here the Senate is being asked to pass legislation that would remove the Senate -- and at a particularly crucial point -- from reaching a determination on a particular point which is to be reserved now for the House of Commons.

There is no conflict between the suspensive veto, which does exist; and the problem that this creates, which is to say to remove the Senate. This would be unprecedented, as I have suggested.

Senator Beaudoin: Yes, it is. There has been no case like this before. The question is: What is your opinion on Bill C-20? Is it an ordinary bill dealing with legislation of the Senate and House of Commons, which is very important, since it is still a proposed statute, or is a constitutional amendment? I think it is not a constitutional amendment -- at least, it is not intended to be such.

Mr. Smith: It is not presented as such, as I understand. It is presented as an ordinary statute. Therefore, this presents the problem.

Senator Kroft: I must try to moderate my position. When a westerner says nice things about the Senate, is interested in the Liberal Party and appears before us as a witness, all I want to do is make you welcome. Nevertheless, we have business to do here tonight.

I will come at this from the opposite side of what my colleague Senator Beaudoin. He comes to you with a legal proposition and I am coming to you with the other side of the coin, triggered by your statement that, if you could do away with one chamber, then why not both? The point is that for the narrow purposes of this bill, there is no reason why you could not do away with both. The government's act in seeking the counsel of the House of Commons is purely gratuitous. I think the legal opinion has been quite overwhelming, namely, that the government could act alone in opening negotiations on a constitutional bill.

You have asked us a question because there is a question mark at the end of your statement. I will answer it. In terms of this bill and in terms of the function of getting the answer to a question, there would be nothing stopping them from, to use your words, doing away with both chambers.

Taking it beyond that narrow ground, which is a purely functional demand on a group of people who happen to be the elected members of the House of Commons, do you not think that you are -- since you care so much about the Senate -- being alarmist in suggesting abandonment of bicameralism? Every time you have done that, you have added "for the purpose of this bill." I am trying to find out on what basis you look to extend this into a broader range of alarm in the legislative process.

Mr. Smith: I do not think, congenitally, I am an alarmist person. I also think it is a fact that, in studying government, in my view governments are about amassing and using power. Therefore, if you make an exception in this instance to get rid of some opinion that you cannot control, then it would become very attractive to do it again.

In addition, in a parliamentary democracy of bicameral institutions, it is essential that the two Houses of Parliament perform the functions assigned to them.

Senator Kroft: When you say "getting rid of one," in fact they are adding one that is not there now. The process of going to Parliament and asking for an agreement before starting a constitutional negotiation is adding a party. It is adding a representative function and not taking one away. That is the distinction I am trying to make.

Mr. Smith: Is the bottle half full or half empty? In a sense, you can say they are adding because the claim is they need to do this. If it is the case of addition, it is bad addition. You do not do that; you do not privilege or favour one chamber over the other.

I said nice things about the Senate, but I am sure there are critical things that one can say. Bicameralism is very important, particularly in a huge country like Canada. We have two official languages, aboriginal people and many minorities. The Senate incorporates that to a degree that many people do not seem to appreciate.

One example I would cite is that there are currently no members in the House of Commons from the province of Nova Scotia. There will always be senators from the province of Nova Scotia. After the 1980 election, there were no government members in the House of Commons from Saskatchewan, Alberta and British Columbia.

It seems to me that the role of the Senate becomes very important. It incorporates actual parties but, on the other hand, it incorporates other minority and diverse views. That is why bicameralism seems to me to be so important.

Senator Kroft: I do not think any of us will argue with you. It is music to our ears, in fact. My only point is to ask you to agree -- which I think you did -- that Bill C-20 involves favouring one over the other, rather than taking something away from one.

Mr. Smith: It favours one over the other.

Senator Christensen: I will ask the same questions I asked of Mr. Justice Estey. Bill C-20, if passed, will cause the Senate to lose or give up powers. One reason given is that, at a time when a referendum is being called, we are looking at a very short time period. There would not be a lot of leeway for both Houses to become involved in order to meet this demand.

If the Senate was in this bill and did have a role to play in the first part, which looks at the clarity of the question and the majority, how would you see the role of the Senate? If the Senate was in the bill and was participating, what would be its role?

Mr. Smith: As I suggested a moment ago, because the Senate has, within its numbers, persons who come from different groups and languages, religions and so forth, its role is to bring another segment of Canadian national opinion. The House of Commons is not defective, but it does not embrace that kind of opinion. The Senate brings that. Without the Senate's participation, the degree of discussion would be impoverished.

Senator Christensen: I am trying to get to the process. What would be the process of the Senate's participation?

Mr. Smith: I am no authority on process. I presume the process would be somewhat analogous to that in the House. The Senate would be looking at the factual data as to the clarity of the question and to the degree of support that has been demonstrated in a referendum for that question.

Senator Christensen: Would you see the question being put to the House and the Senate at the same time? Would both review it and come forward with a recommendation? The House could pass legislation that says, yes, this question is clear and, when it comes to the Senate, the Senate would review and approve that decision.

I am trying to visualize the process because there seems to be some discussion about the role of the Senate in that particular instance. Would they be part of a joint committee of the two Houses? What would be their role if they were in there?

Mr. Smith: I am not sure I can predict that. It would be up to the House leaders to make that kind of determination in the context.

Senator Christensen: What role do you envision? Perhaps that is an unfair question.

Mr. Smith: It is not unfair, but I am not prepared to answer that question. I had not quite thought of that. The answer could be one of several varieties. The two Houses could deal with it sequentially or contemporaneously or in a joint committee or separately.

You must consider the context and the nature of the problems. Personally, I cannot see a single route at this point.

Senator Kinsella: Professor Smith, it seems to me the preponderance of evidence that we have heard in the Senate hearings certainly leads me to the conclusion that the bill is in tatters. If it was supposed to be a seamless web here, you have just torn another big hole in it.

You drew our attention to the terminology of "elected representatives" in your presentation. On page 2 of the bill, preambular paragraph 7 states:

Whereas, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority...

I want you to focus on the term "elected representatives." As you read the advisory opinion of the court, how did you interpret paragraph 153 when the court writes:

However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken.

Paragraph 153 of the court's opinion states "political actors." Do you find something incongruent between being told in the bill that the decision is to be made by elected representatives and the court's words? The former terminology would exclude not provincial legislators, not members of the House of Commons, but only members of the Senate of Canada.

Mr. Smith: Since I was invited to appear, I have re-read the Senate reference several times. Each time I read it, I find something new in it. I have been troubled by the phrase "elected representatives" because it seems to me, at first blush, that sounds like members of Parliament. Most of my students would say that means a member of Parliament, but, the more you read it, the more you ask where the Senate is in this reference.

Quite clearly, the Senate must be there somewhere. One might say that it falls under "political actors," but I actually think it would come under "elected representatives," as rather bizarre as that may sound.

Look at paragraph 35 of the 1998 reference to the Supreme Court. I noticed this because, as a citizen, I take the Supreme Court and its words very seriously. It begins:

Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada.

It then goes on to talk a bit about the 1860s. At the top of the next page but still paragraph 35, it says:

A group of Reformers from Canada West, led by Brown joined with Étienne P. Taché and John A. Macdonald in a coalition government...

Étienne Taché was never elected. He was a member of the Legislative Council of the United Canada. Yet, they start off by talking about "elected representatives." I infer from that that "elected representatives of the people" is maybe not what students in Political Studies 110 are taught. It actually means persons who represent the people by election or other means such as appointment.

Senator Kinsella: The content of the advisory opinion clearly does not provide any basis for the exclusion of the Senate, but more so, your point seem to be that then, Minister Dion, failing to find a basis in the words of the court to exclude the Senate, comes up with this bizarre theory that the government is responsible to the House of Commons as justification to exclude.

Mr. Smith: I do not know about being bizarre, but I do not think that that explanation is satisfactory. It is refuted by many other pieces of legislation. I do not think it holds water.

Senator Kinsella: No, it does not.

Senator Sibbeston: Can the provisions in the clarity bill be seen as an executive act of government in that the government has the power and it makes decisions on a day-to-day basis? They have adopted certain procedures for a province wishing to secede to follow. Without question, if it were a matter of legislation, the Senate would have to be involved. The Senate's role is essentially legislative in nature. It is not to check or in any way touch on the decisions of government on an everyday basis. Government makes decisions every day and the Senate is not involved.

Could this not be seen as an executive act? Have they simply gone a little further than usual in outlining how they will deal with a very important matter such as secession and it should be simply looked at and dealt with as such?

Mr. Smith: That might be one interpretation. I would say it goes too far, that it is qualitatively different. The Senate and the House of Commons have a joint committee on statutory instruments and so forth. That is fine. It does excellent work, but statutory instruments and regulations are different from the division of Canada. On a matter such as that, given the nature of the composition of this body, it is not acceptable that the Senate should be excluded from participating in the determination of the questions that the legislation provides.

Senator Sibbeston: The federal government has faced two situations such as this and they did not have any legislation. They dealt with the matter as a government, as an executive. Fortunately, it was a majority decision that the government had to act more than it did, but if you are correct, then was the government somehow wrong or unconstitutional in not having provided rules before this time?

Mr. Smith: I do not think that follows from what I am saying. I am saying that here you have a clarity bill which privileges the House of Commons and excludes the Senate and that, under a bicameral system, I do not think that is either appropriate or legal.

Senator Sibbeston: I agree with you that it is bicameral with respect to legislation, but not necessarily government action. The Senate is not involved in government day-to-day decisions. The terms of how the government is going to deal with this matter is put into this clarity bill. It does not have to and it did not do so in two other cases before this. Now that it has set out its rules and provides for the government to have the House of Commons involved and not the Senate, you are saying that is not right because of our bicameral system; but bicameralism only comes into play with respect to legislation. We are both involved in passing Bill C-20, but once it is done we may not have anything further to do with it.

Mr. Smith: What troubles me is what Bill C-20 is doing. It seems there are different interpretations, but the one interpretation is that it is delegating power to the House of Commons. I do not think that can be done.

[Translation]

Senator Poulin: I should like to come back to the answer that you gave Senator Kroft. Bill C-20 defines a management process within a very specific situation, namely in the case where a provincial government decides to put a referendum question to the public.

However, if I understood you correctly, within this management process, Bill C-20 favours the House of Commons but does not take anything away from the Senate. Is that correct?

[English]

Mr. Smith: As I understand it, it seems to me that you cannot give to one House of a bicameral legislature this kind of authority. You cannot bypass the Senate for that determination. I cannot think of a precedent where one House, in this case the House of Commons, has played that role.

The money-bill argument is a different matter. The constitutional convention on money bills is that the Lower House has a monopoly.

Senator Cools: Only on originating, nothing else.

Mr. Smith: I stand corrected.

This seems to me to be totally different. To say, "Yes, there is a suspensive veto and the Senate has only a partial role in the passing of constitutional amendments," is true. However, this is not a constitutional amendment. It is an ordinary statute. If it is an ordinary statute, then it requires a bicameral Parliament at work. That is my view.

I also would see it more than as a management decision. In particular, we do not make that distinction in law very much in this country, but this is an extraordinary situation that this legislation anticipates.

Senator Poulin: We all hope that it will never happen.

Mr. Smith: Exactly.

Senator Poulin: Since it is a unique situation, is there anything in Bill C-20 that prevents the Senate from, itself, taking a step back and developing, perhaps, a process or an approach to give advice to the House of Commons, if ever that situation should happen?

Senator Cools: Put down a motion to remover the minister.

Mr. Smith: The legislation does speak of consultation with various groups, and the Senate is one, as is the aboriginal peoples.

If this were to become law, how the Senate would formulate or determine its opinion to communicate in this context, I would presume would be for the Senate to determine. There is no prohibition on discussion at all.

However, what is a very different matter is the fact that the bill says that the House will determine and, more than that, government will act in accordance with what the House has determined. There is a big gulf between that, on one hand, and senators discussing this matter and communicating their discussion to the House.

The Chairman: Professor Smith, I was delighted to see your ringing affirmation that you are not a constitutional lawyer because neither am I. However, you are a political scientist, so I will ask you a political question.

Imagine we have had a referendum -- like my colleagues, I hope we never get there again, but let us assume that is the case -- and this time everybody in the National Assembly has agreed that the question is clear and the result is clear. The House of Commons has determined, maybe even all parties in the House of Commons have determined, that the question was clear and the result was clear in favour of secession, probably of Quebec -- although 100 years from now, who knows. Let us speak of Quebec. What would be the political result if the Senate were in a position to veto the beginning of negotiations on secession?

Mr. Smith: To the degree that I understand politics from studying it, and I am deferential in this company, nothing is ever so clear. It is never a black and white situation. There are always anomalies. There is always the question of: Has X agreed, or have they agreed, or the proportion of agreement? In a way, I find it difficult to conceive of it being quite so black and white.

The Chairman: If you look at secessions around the world that have been successful, where there have been votes, those that have been successful have had clear questions and generally high votes. A figure of 65 per cent would be low.

Suppose Quebecers voted on a clear question, 65 per cent said "yes," and the Senate, in its infinite wisdom, said, "No, only 75 per cent is good enough for us." What you are suggesting, as I understand it, is to give the Senate the power to do that. I am troubled by that prospect.

Mr. Smith: I cannot imagine the Senate would ever do that any more than the House of Commons would do that. We operate a political system in which reason is paramount, if not always determinative, but it is paramount and politics rests on that.

You mentioned examples. There are few examples of peaceful secession, to my knowledge. The one that is usually raised is the Czech Republic and Slovakia.

Each of these situations was quite distinct, as is Canada's, but Canada is an old constitutional system compared with Czechoslovakia. Czechoslovakia was cobbled together after the First World War. This country has one of the oldest uninterrupted constitutional systems. In any case, all countries are distinct, so I do not think there is an example. For that reason it would be difficult to deal with this.

Nonetheless, I cannot hypothesize that the Senate would do what you are suggesting. However, even if one could conceive that, I do not think that constitutionally warrants removal of the Senate from participation. I think that is required.

Senator Cools: Professor Smith, I have been reading some of your works. I have a couple of questions because I think that some of these issues are very obfuscated, particularly the role of the Senate in Canada as the Senate was designed.

I am sure, from your studies, you know that, at the time the Senate was configured, it was intended to be an equal and coordinate body with the House of Commons. Its constitution came along at a point in time when responsible government was asking for co-equal bicameralism or co-equal Houses.

There are a couple of principles of responsible government that pertain, for example, ministers are expected to adhere to unity of policy. That is one principle. There is another one that there is supposed to be unanimity of cabinet, in other words, the cabinet speaks with one voice. There is another principle of responsible government which is that ministers are expected to seek the concurrence of the two Houses in matters of public policy. Another is that ministers are expected to pay allegiance to the Crown and to the country, and that the first duty of the cabinet and the government is to maintain the integrity of the nation as a whole. In other words, to maintain the wholeness of the country.

The government has told us repeatedly that they have the right to negotiate secession based on the Royal Prerogative. Senator Joyal, other senators and myself have contended that there is no prerogative that permits or authorizes the government to negotiate secession.

Mr. Justice Estey, a few moments ago, in discussing the question of divisibility and indivisibility of the country, essentially said that the country is not divisible now, but it could be in the future. He essentially said that it would take a constitutional amendment to do it.

It seems to me that the Supreme Court of Canada advisory opinion came to a similar conclusion for some rather strange reasons, but that is not my point. My point right now is that Bill C-20 is before us. Bill C-20 would give the government the power to negotiate a secession. I maintain that there is no constitutional authority for that. There is no express provision anywhere in the texts of any of the constitutional acts of this country which authorizes the government to bring Bill C-20, or any other bill which allows the government to negotiate a secession. Secession is not a part of the Constitution of Canada. That is not to say it may not be in the future, but at this point in time it is not.

If we may return to Mr. Justice Estey's testimony of a few minutes ago, one must look to the texts of the constitution acts when one looks for such authority. Do you have any comment on the fact that Bill C-20 -- in addition to all of the things that it does which are not unique, they are irregular -- attempts to give a government a lawful authority to negotiate secession, a bill which also says that an amendment would not be necessary and, according to the preponderance of opinion that we are hearing here, for our government to have authority to negotiate a secession, it would require a constitutional amendment first? The Constitution would first have to permit secession before a government could introduce a bill asking members of the Senate or the House of Commons to approve such an enactment. Do you have any opinions?

Mr. Smith: It seems to me you always have to start back at the first principle. First, to my knowledge, no country has any provision for its dissolution or secession. Under the present Canadian Constitution, no provision was made for severance or dissolution of a portion of the territory of Canada.

This is the first time such an authoritative body has looked at this question. As a result of the questions submitted to it by the government, the Supreme Court also concluded that there is no right for a province under Canadian law or under international law to secede. There are other conditions, but not Canadian conditions.

The court also said that, if there is a referendum on a clear question in an affected area, then there is an obligation to sit at the table and to discuss terms of secession or to negotiate them. Even there, it did not say there was a right to secede.

It seems to me that there is no authoritative statement to support a government embarking on actual negotiations for the severance of a territory. It seems to me it would need some kind of mandate, either by a referendum or a general election. It seems to me that that would be constitutionally desirable and politically wise.

To answer your more immediate question, nowhere can you find in authoritative documents any procedure providing for the severance of the territory of Canada.

Senator Cools: That was my point. Suppose we were called upon here to do an exercise of enumerating the first 100 principles of responsible government, or the first 100 principles that flow from being a minister of the Crown or a cabinet of government. One would quickly see that the first duty is allegiance, and it is allegiance to the subject. The first expectation that the citizen has is that they can conduct their affairs in their homes uninterrupted, without having to worry as to whether or not their village or hamlet or town will be a part of this country or another country today or tomorrow or next week. You know the old European maxim: Countries come and go, but cities remain. Responsible government in Canada was evolved to answer the problems of two different races with different practices and habits living side by side.

The Chairman: Do you wish to comment, Professor Smith?

Mr. Smith: No.

Senator Taylor: Professor Smith, as an old-time Albertan, I have read a great deal of your material. It is nice to see you in the flesh. I used to look for your political writings for inspiration.

Mr. Smith: I will not ask the obvious question.

Senator Taylor: As a Liberal from Alberta, I suppose I did learn to survive as opposition leader for 14 years.

The criticism of this bill seems to boil down to the divisibility argument that Senator Cools just made. Senator Joyal will probably mention later another aspect that you talk about in your paper. Senators Kroft and Sibbeston are articulate and clear that, the cabinet and the Prime Minister, as a management decision, had the right to go ahead and introduce Bill C-20 which confers an exclusive duty on the House of Commons. It would be a little more difficult to bring in the Senate. As well, the minister argues that the elected House has to run on election or is responsible for elections. The management question ignores the problem.

I piloted through a bill on the environment and another one on parks in the last few years. The government could have easily said the environment is a management decision and it would have to run the election, et cetera, so we do not need the Senate for the environment bill. It could have said the same thing about the parks bill. They could have said, "It is a management decision, not a tax bill, so we do not need the Senate because it is a management question and the Senate is an itch where you cannot scratch."

Perhaps you heard my earlier question to Mr. Estey. As a writer, do you see this as a deliberate manoeuvre by a House represented by the population, where the central core now has nearly 60 per cent of the seats? After the next census, Alberta and B.C. will probably go up to around 64 per cent. It is not out of the question to have two-thirds of the seats in Canada in those two provinces, whereas they could never get past 47 per cent in the Senate. If anything, they might slide back. Do you think there is any sort of long-term plan and that we senators would be covering our eyes if we continued to buy the idea that it is a management decision? In other words, in the idea of traditional government, are we cutting our own throats in the long run?

Mr. Smith: I do not think it is a management decision, as I have said. It is probably the most important decision the Parliament of Canada will ever be called upon to make. Therefore, it is hard to cite any kind of precedent or guide.

I am not quite sure I fully understand the thrust of your question. Is it that, because two-thirds of the members of the Lower House come from two provinces, there is some kind of calculation?

Senator Taylor: There is actually an inborn friction between the Senate and the House of Commons which will become worse as time goes on because the representation-by-population House will become more concentrated and there will be more seats because they start with a higher percentage base. It is the old idea of turning the other cheek. You might not only end up getting the other cheek punched but also a few other parts of your body. If we say it is a management decision and they need it to be so to run elections and we let it go, are we asking for trouble? Are we setting a precedent?

Mr. Smith: I believe to do as you are suggesting would set a precedent, as any action sets precedent. My opinion is that it is the wrong precedent, because bicameralism is essential. As it was deemed essential, we would not have Confederation without it. On this issue more than any other, it seems to me that it is necessary that it continue to function.

I might say parenthetically, although I have made these criticisms, that like many Canadians, I am concerned about clarity. Like many Canadians, I was alarmed and fearful at the time of the last referendum. I am not opposed to the government acting. I think it is incumbent upon the government to act. However, I think that, in this particular dimension, what they are doing is wrong.

Senator Taylor: It is not a management decision; it is a very basic decision.

Mr. Smith: I cannot think of anything more basic than the future of the country. It requires, it seems to me, the broadest and most informed opinion. Therefore, in a sense, to amputate one of the Houses is not in the interests of the public for the future.

The Chairman: Senators, we are now into overtime, so I will ask everyone to tighten up their questions substantially, please. I am sure, Senator Prud'homme, you heard that.

Senator Prud'homme: No editorializing, please.

[Translation]

I have listened to and read all the evidence given at the House of Commons and before the Senate. I think that we are not showing proper respect to the people, especially when we say that they do not understand what they voted upon during the referendum. Despite all of the polls, I am not of that opinion.

Why did the vote reach 50 per cent the night of the last referendum? Everywhere people were very relieved at the victory. But what exactly did we win?

On the final page of your text, you mention that the House of Commons and the Senate act differently. We are all very familiar with the political system and, personally, since I have been a member of both Houses, I agree with you.

In the case where the House of Commons is examining a vote, in a context where a minority government is always possible, and there is a tie vote, it is the Speaker of the House of Commons who must break the tie. That would be clearly something out of the ordinary! To achieve clarity, one or two votes would be required to create majority.

In your opinion, do people know what they are voting on during a referendum? As an example, in Montreal's West Island people voted No to the tune of 99 per cent. Are you telling me that these people did not know what they were voting on?

In my opinion, the Senate has a role to play: it's to temper, to listen and to avoid panic. I am one of the longest-sitting parliamentarians. I have been through many a trial, and among them, the War Measures Act. I know that when history will be written, the same thing will happen. I believe that the Senate is the Chamber where things can be tempered.

[English]

I will not read it, but say that you have put my views very clearly in the two last paragraphs of your text, Professor Smith and I shall use it during the debates in the Senate. It appears that some do not approve of the Senate. I believe that is because the Canadian people have never been involved in the discussion of what the Senate is all about in a federal country. To me, that is important. However, whenever some party is frustrated about proposed legislation, they suddenly want to turn to the Senate and they beg us to take their cause. They still believe it is not bad to have a second chamber. Could you find a couple more arguments for the debate? I feel the debate is about to come to an end very soon, although not here. I see a deadlock looming. We are not stupid, even though we are not part of the decision-making process. I see that the decision has been taken to terminate this debate. At least I was happy as a non-member to participate. Could you elaborate on the two last paragraphs of your text, which I anticipate I will use extensively in the debate on third reading of this bill?

Mr. Smith: Do you want me to do that now?

Senator Prud'homme: I love my colleagues when they laugh. They sometimes think we are jokers, but when I deal with the future of my country called Canada, I am very serious, even if some seem to take my comments very lightly. To be frank, professor, I do not give a damn about comments that colleagues may make about my way of intervening. I am what I am. I am a passionate Canadian and I express myself that way. It seems to cause enjoyment for so many of my colleagues. I shall get them during the debate.

Mr. Smith: I will make one point because I think it came up during Mr. Estey's comments. I heard somebody mention -- perhaps it was he -- that in the United States Senate, there are two senators for each state, and this point is made all the time by those who are critical of the composition of the Senate. There may be reasons to change the composition of the Senate, but I want to make a point that I make to my students because I think it is important. People who say that really do not understand American politics. Yes, there are two senators for every state regardless of the population of those states. However, when you think of the American senators that you know -- and often they are from small states such as Idaho or Arkansas -- you think of them not because they are from Arkansas and Idaho, you think of them because they are national politicians. The Senate is a national institution much more than it is a state institution in the United States.

I think it is a mistake for Canadians to criticize our Senate and use the American model when, in fact, the American model that they are suggesting is not used that way in the country which developed it and in which it has evolved. It has nothing to do with numbers in that way. I think that is a big mistake.

[Translation]

The Chair: Senator Prud'homme, the laughter that you hear is a sign of affection.

[English]

Senator Prud'homme: I have been killed by affection for the last 37 years.

Senator Pitfield: If you look in the Dictionary of American Biography, there is an article on Mr. Justice Holmes written by one of the great liberal Supreme Court judges of the 1930s, Felix Frankfurter, in which he talks about Washington as a unique capital.

Justice Frankfurter develops the case of the responsiveness of American political institutions to the peculiarities of the American community. It seems to me that this is the one thing that we really have not done very well in Canada. We do not have the tradition that is found in the United States in The Federalist Papers. We do not have that tradition, where the people who did what we are doing, conceived of their role as being between the political and the intellectual -- if I can put those two terms together -- and the result is that our debate is essentially a discussion amongst Tories. Forgive me, Senator Murray.

This evening has been a revelation to me. There have been five points made where we, your students, are saying that the advice we are getting from the governmental sources is at odds with our observation of the facts. We have one proposition that the pros and cons amongst the intellectuals is about evenly balanced. I find it overwhelmingly in favour of my corner. Surprise!

We find that the opinion is that the government has the authority to take this issue of constitutional negotiation and start running with it without any approval by any further authority. We have people saying that this is the law. I am asking myself how these contradictions are resolved.

What do we say, Professor Smith, to senators who are appointed, came here to do a job, took an oath, and now are being hard pressed to do nothing? How does the model work? You are not a lawyer, thank God, but you are an outstanding political scientist. This is the essence of what has been driving this country to bits throughout my last 30 years.

I did not come here to practise politics. The last thing I want to do is be a constitutional lawyer. However, the issue of national unity was thrust upon our generation and we, in our typical way, resorted to frittering away the first half of our advantage. Only now are we coming to grips with it, but we must open a dialogue. This measure provides a perfect foil for that. The consequences are extraordinary. How do we get to the debate?

Mr. Smith: To some degree, what the Senate is doing with regard to this bill seems to me to be what the Fathers of Confederation wanted the Senate to do. It seems to me it is what you want an upper chamber to do. It does not monopolize the debate. Members of the House certainly have a great contribution, as do members of the government, but the Senate can add a new dimension and that is what it is doing. What I really like about it is that it is not just the debate going on in this room, there is also now a debate in the newspapers. That is the way democracy is supposed to work so that what the legislators say is picked up in the public and the public begins a discussion. It may be a minority of the public, nonetheless it is being discussed. This did not happen when it was only in the House. It is happening here, therefore, it seems to me that the Senate is doing what one hoped it would. It is true this is a monumental issue and it obviously has attracted great attention in the media.

Another point, which again the Senate is often criticized for -- although it is nobody's responsibility here -- is that senators are appointed to age 75. One of the products of that is it does give you the protection from pressure, which is very difficult in political systems. Other countries do different things. They have upper houses in terms longer than lower, and so forth, or they have a different electoral system. Canada's is almost unique in being appointed. That was not an accident. The reason for it was exactly to protect senators so that they would be free to express their opinion, and the opinion of the regions and the minorities that they represent.

Senator Joyal: Thank you, Professor Smith, for your views on the Senate. I would like to come back to some of the elements that have been put forward tonight and that have been debated with some of my colleagues before. One element deals with the issue of national sovereignty. That is not an issue that scholars and Canadian politicians generally want to debate at all.

When I say "national sovereignty," it implies the territorial integrity of Canada, as well as the obligation of the Government of Canada to maintain territorial integrity. It is recognized in international law that a sovereign nation is entitled to protect itself externally and internally.

When I opened up the debate on indivisibility in the Senate I had the impression that I was pronouncing a word that did not exist in the political lexicon of the national unity debate. No one had ever wanted to touch that. It is the word that would have incited too much passion because it would have been interpreted as denying a province its proclaimed legal right to secede.

I have great difficulty with the proposition that a province can decide to secede. However, we are discussing not secession but dismantling the country. We have always tended to see it from the perspective of the province that makes the request rather than from the perspective of the whole. The whole has a right to remain the whole. I find it preposterous to sustain, as it has been done here, that the government has the unfettered prerogative to decide to terminate the whole, that is, not to protect the principle of territorial integrity which is basically linked to the national sovereignty of Canada.

This bill is not an administrative kind of bill. It is a bill that opens the door for the Government of Canada to escape its fundamental obligation to maintain territorial integrity.

I still have many questions about how a government, elected to manage the affairs of the nation, could conclude that the affairs of the nation includes the responsibility of dismantling the country, however it wants to do that. I question that a simple majority in the House of Commons could decide that 10 per cent of Canadians can empower the board and the CEO of the company to authorize the dissolution of the company, while 90 per cent are not even consulted.

I have problems reconciling that with democratic rules.

Mr. Smith: The bill says that the House of Commons will determine the clarity of the question and the degree of support, and then the government will act accordingly. What I find striking about that is that the government has, in a sense, abdicated its autonomy in this matter. I do not understand why, politically, it would have done this, and nor do I understand the constitutional theory. It seems to me that at a time when you most want flexibility this constrains it to an extraordinary degree. I do not understand why a government would have done that, and I think it is unprecedented to have written it this way. It would be another matter if the House were to look at the question and give its opinion, but that is not what it says. It says that the House will determine and inform the government.

With regard to the question on sovereignty, one of the reasons that Canada has very little literature on this is that we were not a sovereign country until relatively recently. We find ourselves caught up in the whole "Imperial" business and all the complexities involved in that. Once we do become independent, the focus is on our own internal strains and the sovereignty question is not one that is politically palatable to talk about.

As well, we do not have a theory of the Constitution which promotes an exploration of these kinds of questions because of constitutional monarchy. If you take that traditional view, it is fairly clear. Hogg said it and that is sort of it.

In fact, Canada has changed a great deal. With the Charter and such, sovereignty has moved to the people in any practical way, and therefore the people must be consulted. In fact, governments are moving this way. We do have referenda. We are recognizing it in a de facto, ad hoc, sort of way. That is true of many countries.

Senator Murray: Professor Smith, you have written extensively about Canadian politics and, in particular, about Saskatchewan and Western Canadian politics. I will ask my question succinctly and then explain it.

How much support do you think there is in the Province of Saskatchewan for the position you have presented to us tonight?

That is not a question that I ask lightly. Senator Pitfield has suggested that this bill should be the starting point for a debate on the larger issues. You know that last December, when this bill was brought forward, there was an visceral reaction of almost overwhelming support for it in English Canada, so much so that it spooked the leader of the Reform Party in the House of Commons, spooked the leader of the New Democratic Party, and divided Mr. Clark's caucus.

You have put forward the issue of bicameralism very well. There is the aboriginal rights issue, the minority language issue, and the indivisibility issue, all in the bill before us now.

What do your students say when you put forward a proposition like that? Do they tell you to get serious, that the Senate is a place for old hacks, that it should not be taken seriously and nor should your position?What do you think as one who has written and studied Canadian politics? What is the chance of having a real debate?

Mr. Smith: In a way, I perceive this as a kind of missionary activity, despite the somewhat sycophantic sound of some of it. The point is that I think bicameralism is absolutely vital in a democracy. The bicameralism we have in this country is the House of Commons and the Senate.

If people want to change the Senate, they have to work to do that. However, that is what we have, and it is better than not having it. Moreover, I believe that it works better than most people think it works.

I make my students read some of your committee hearings. I made them read those on Term 17 and compare them with what took place in the House of Commons to teach them that this is the way the political system works so they will not have the knee-jerk reaction that the Senate is pointless and patronage based. We do use the appointment process. It is an honourable way. It is the way a constitutional monarchy works. If you want to change it, go out and get an elected Senate. However, you must figure out what the implications of that would be.

Political systems are "systems." You cannot make an adjustment without compensation taking place. As I said earlier, the reference the Supreme Court talks about an internal architecture. The Constitution has an architecture. It is not just a bunch of rules. It makes sense, but you have to pay attention to how it works.

I am, however, afraid that, if I were to engage the owner of the convenience store in Loreburn, Saskatchewan, on this topic, I would have some difficulty. However, I am not a minority of one on this issue. I have taught several hundred students and I am sure there are some out there.

Senator Kenny: Why does the Senate need permission? If the Senate does not like the clarity of the question or of the conditions, it can say so. It can create the same political debate and have the same political effect, whether or not it is included in this bill. If the Senate does not like what the House of Commons has to say, and pronounces itself, it will have exactly the same effect whether this bill is taken as written or whether we amend the bill to include the Senate. Do you agree with that?

Mr. Smith: I can agree with you almost to the end of what you were saying, that is, yes, it can do all of what you are saying. However, to say that it would have the same effect is unknown. If both chambers are not party to the decision on determination, then that is different from the Senate providing its opinion, for which the bill does provide.

Senator Kenny: I am saying that, if the Senate pronounces itself and chooses to have a different point of view from the House of Commons, then there will be turmoil.

Senator Taylor: We cannot do it now, so why expect it in the future?

Senator Kenny: The witness is here to answer my questions.

The Chairman: Order, please!

Mr. Smith: There is some rule that permits us, in really important instances once every thousand years, to make a point.

The Chairman: Perhaps Senator Kenny could finish making his point.

Senator Kenny: If you visualize a situation where the House of Commons pronounces itself, you could also visualize a situation where the Senate chooses a different point of view and you would virtually have the same effect.

Mr. Smith: You would have virtually the same effect, but constitutionally it would not be the same. In that scenario, the Senate would have voluntarily abdicated.

Senator Kenny: I am talking politics now.

Mr. Smith: Constitutionally, it is essential that one does not retreat on that. This is a bicameral system and to retreat becomes an example that can be repeated.

Senator Pitfield: Please, do not let any of us forget that we committed ourselves 30 years ago, with Mr. Pearson and Mr. Stanfield, to a process that is a two-step process. It never occurred to us that it would take as long as it did to do. The first part is only now being finished. This is the embodiment of the first part; the end of it is Bill C-20. It is the process of the Constitution. We must understand the process. That is why we have you and me, Senator Murray, and others, going around the country trying to stir up interest in it, and so on. All of us have been doing it. We have a good idea of what the process is now. We are just ready to tackle the questions of substance. We made it. No sooner did we make it, than we are throwing it away. I would urge you to think about what you would be doing if you amend this Constitution on the point that we are discussing and then try to get it revised two or three years down the road when you are taking on the broader images. Think about it.

Mr. Smith: If Bill C-20 were to come into effect as outlined and as the government has written it -- and there are concerns about its constitutionality and about the exclusion of the Senate -- then a dire scenario is that this would be challenged. It is not unlikely that this could become part of the whole scenario of a referendum in a province. It would be a strategically wise thing to challenge it at a time when there is a referendum.

Following on what Senator Pitfield said, there is a long-term development here, and there will be no challenge if bicameralism is respected. The possibility of challenge if it is not respected arises, and that should be a consideration.

The Chairman: Thank you very much, Professor Smith. It has been a very interesting session. We have kept you substantially later than we said we would. Thank you for your patience.

The committee adjourned.