Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 23 - Evidence, March 21, 2007
OTTAWA, Wednesday, March 21, 2007
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. to give consideration to Bill S-4, to amend the Constitution Act, 1867 (Senate tenure).
The Honourable Donald H. Oliver (Chairman) in the Chair.
[Translation]
The Chairman: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. Today, we are commencing our study of Bill S-4, to amend the Constitution Act, 1867 (Senate tenure).
Bill S-4 includes a substantive clause to amend section 29 of the Constitution Act. This bill changes the tenure of members of the Senate which currently expires once they reach the age of retirement, or 75.
The new terms would be held for eight years. The previous bill barred reappointments whereas they would be allowed under this new bill. Appointments would be made by the Prime Minister, as is the case today. This bill was introduced in the Senate on May 30, 2006. On June 21, 2006, the Senate struck an ad hoc committee to consider the purpose of this bill and other matters regarding Senate reform.
This committee heard from 26 witnesses including several experts in the field of Senate reform. The Prime Minister of Canada himself appeared before the committee on September 7, 2006, and he stated that this bill would provide for a modest but positive reform of the Senate.
[English]
This committee begins its work with several notable advantages which should help us to proceed expeditiously. It has been able to review the expert evidence given to the special committee whose transcripts have been circulated at my request. It has the benefit of the report of the special committee which provides excellent background discussion and analysis relating to the reform issues raised by this bill. For those who may be interested, that report is available on the Senate website at the Special Senate Committee on Senate Reform link.
Finally, we have the benefit of extensive debate in the Senate chamber on both this bill and the special committee report.
Bill S-4 has now been before the Senate for 110 possible sitting days, stretching over nearly 11 months. A great deal of useful work has been done in this time. Our committee has decided to use that work rather than duplicate it.
With the exception of a few individuals, we will rely on the evidence provided by experts before the special committee, rather than hearing them again. We have relied on that evidence and the work that has been done to narrow our scope of inquiry to two essential issues still outstanding. The first of these is the constitutionality of the bill.
Can Parliament amend the Constitution to create Senate terms without involving the provinces?
The second is the eight-year term itself. Are renewable eight-year terms the best available option for the Senate? We have focused our consideration of this bill and we have also been granted leave for an extended time to hear witnesses so that we can do our work well. That should allow us to give this important bill the rigorous attention required by the public.
We will also be able to proceed efficiently and move forward in a timely way to address other major government legislation that is already before this committee.
I would now like to welcome our first panel from the Privy Council Office. We have here today Matthew King, Assistant Secretary, Legislation and House Planning, Dan McDougall, Director of Operations, Legislation and House Planning, and David Anderson, Senior Policy Advisor, Legislation and House Planning. They are accompanied by Warren J. Newman, General Counsel from the Constitutional and Administrative Law Section of the Department of Justice Canada.
Gentlemen, welcome to the committee.
[Translation]
Matthew King, Assistant Secretary, Legislation and House Planning, Privy Council Office: Mr. Chairman, if you allow me, I would like to address the various aspects of this bill. I will be presenting the government's position on two fundamental aspects of Bill S-4, which were the subject of considerable debate before the ad hoc committee and at second reading in the Senate, in other words the constitutionality of Bill S-4 and the length of Senate terms as provided under the bill.
[English]
As you mentioned, Bill S-4 was introduced in the Senate on May 30, 2006 and amends section 29 of the Constitution Act, 1867, by using section 44 of the Constitution Act, 1982, whereby Parliament has the power to act alone to make laws amending the Constitution in relation to the executive, the Government of Canada, the Senate or the House of Commons.
As you know, pursuant to the current section 29, a senator may hold his or her place in the Senate until the age of 75. Bill S-4 amends the Constitution Act, 1867, by replacing this section with a new section 29 that limits the tenure of senators to eight years.
Accordingly, the bill removes the requirement that senators must retire at 75 years of age. The bill provides that all current senators will continue to hold office on the terms and conditions at the time of their appointment, namely, until they attain the age of 75 years.
The bill does not change the section 23 requirement that senators must be 30 years of age, nor does it change any other aspect of their qualifications listed in section 23, including that of property.
Clearly, the constitutionality of Bill S-4 has been a dominant topic in all of the debate held to date on this bill. It is the government's position that the chosen approach — namely, to amend section 29 of the Constitution Act, 1867, using section 44 of the Constitution Act, 1982 — is entirely constitutional.
The government's view is based on its opinion that the elements of Senate reform requiring the use of the general amending formula — the so-called 7/50 amending formula — are clearly set out in section 42 of the 1982 act, those being section 42(b), the powers of the Senate and the method of selecting senators, and section 42(c), the number of members by which a province is entitled to be represented in the Senate and the residence qualification of senators.
As tenure is not one of the elements specified in section 42, it is the government's position that Parliament has the power to enact Bill S-4 through the use of section 44.
That was the position set out by the Prime Minister when he appeared before the special committee on September 7, 2006. I believe it was also the position taken by a number of prominent constitutional scholars who appeared before the special committee, and that the report of the special committee concluded there are compelling arguments that the government's approach is constitutionally sound. For that reason, the report concluded there would be no point in referring the matter to the Supreme Court of Canada.
Turning to the length of term, let me provide a bit of context on how the government decided on an eight-year term.
The government chose the eight-year term based on its belief that the term is long enough for a senator to gain the experience necessary to fulfill his or her role in legislative review and policy investigation while, at the same time, ensuring that the Senate experiences a renewal of ideas and perspectives on a regular basis. The eight-year term falls within the range of proposals previously put forward. In 1984, for example, the Molgat-Cosgrove report recommended a term of nine years and, in 1981, the Canada West Foundation and the 1985 Alberta Triple-E committee both recommended terms equivalent to the life of two legislatures.
It is interesting to note that, while Molgat-Cosgrove included recommendations for fundamental Senate reform that would require 7/50 amendments, it also recommended moving right away to adopt a nine-year term for senators as a stand-alone reform to an appointed Senate. Clearly, that is the case for Bill S-4 as well.
The report concluded that this could be accomplished by Parliament acting alone under section 44.
From an international perspective, the adoption of an eight-year term would mean that the Canadian Senate would have the second longest term among second chambers with limited terms. As Professor Peter McCormick pointed out during the special committee hearings, only France, at nine years, would have a longer term.
It is also interesting to note that, based on figures compiled by the French Senate on 51 second chambers worldwide, the average tenure of these institutions is 5.4 years.
As the Prime Minister indicated before the special committee, the government is pursuing a step-by-step approach to achieving comprehensive Senate reform. This approach is initiated by introducing practical and achievable measures where Parliament can act alone. It is the view of the government that such steps will build the support necessary among the public, the provinces, stakeholders and others for more comprehensive reform in the future.
In this respect, and beyond Bill S-4, the government introduced Bill C-43 on Senate appointment consultations on December 13, 2006 in the other place. Bill C-43 has not yet begun second reading. It is the view of the government that these bills are not tied one to the other. Rather, the government has made it clear that the two bills stand alone and each should be considered on its own merit.
With this, honourable senators, I will conclude my remarks. My colleagues and I would be pleased to assist the committee in its study of this bill.
The Chairman: Have you had a careful look at the Upper House Reference case that went to the Supreme Court of Canada in 1980 before we got our Constitution Act in 1982? In that case, they talked about amendments that might affect what they called the essential characteristics or fundamental features of the Senate.
In your discussions and deliberations, did you look at those two principles that the court analyzed? Can you tell us if Bill S-4 affects the essential characteristics or fundamental features of the Senate?
Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice Canada: Without adverting to internal legal advice, we did read carefully the opinion of the Supreme Court of Canada in December 1979 in relation to the upper house. Our view, as echoed by a number of constitutional scholars who appeared before the special committee, was that the essential elements of the Senate reference were codified in the amending formula; the essential characteristics or fundamental features of the Senate that are protected by the complex amending formula are found in section 42. While this bill will amend a provision of the Constitution relating to the Senate, it is well within the purview of section 44 because that section states that it is within the competence of Parliament to make laws amending the Constitution of Canada in relation to the Senate, subject to section 42. Certainly, the Senate reference opinion of the Supreme Court of Canada informed our analysis of the amending formula, but we turned first to the amending formula to see how to amend the Constitution of Canada since 1982.
The Chairman: Do any other members wish to respond to characteristics and fundamental features? If not, Senator Milne will begin.
Senator Milne: I have some problems thinking that the fundamental nature of the Senate would not be changed by having an eight-year renewable term.
A two-term Prime Minister, which has certainly happened often enough in our past, would have appointed every single senator by the end of the second term. In effect, it would be a one-party body. What, then, would become of sober second thought and independence looking at the legislation that comes through? It seems they would spend the first four years of their eight-year term saying "thank you'' to the Prime Minister and their second four years saying, "Please reappoint me.''
It would seem that the value of the Senate as an independent body would completely disappear under this shortened term, and any reason for having a Senate at all would be gone.
Mr. King: As I mentioned, it is the government's position that these are intended to be initiating steps that will lead the country to a process of comprehensive Senate reform at some point in the near future. Because Bill S-4 will effectively be neutral on any senator here now, it would take until 2037 before all sitting senators would have reached the mandatory retirement age. It would take until 2014 or 2015 before two-thirds of them had vacated so there is this built-in transition.
The other issue you raise is renewability and perhaps I am remiss for not pointing this out in my overview of the bill. Bill S-4 is silent on renewability but, when the Prime Minister appeared before the special committee, he was asked whether the government could or would be flexible on this issue. He was quite frank with the committee. He said that, in looking down the road to the Senate of the future, he saw an elected Senate so he would be personally predisposed to terms that would be renewable. If you look at some other government initiatives, there is a certain logic in that. However, he also said that, if the committee for constitutional or other reasons wanted to make the terms non- renewable, then the government would certainly be prepared to consider that as well.
It is two sides of the same coin. There is the issue of transition — and it would be a number of years before that type of outcome would be achievable — but also the issue of renewability as well.
Senator Milne: That does not really answer my questions. The idea of having at any time in the future, no matter how many years down the road, a Senate that could potentially be one party completely negates the entire value of having a second look at government legislation. This committee, in the years that I have been on it, has been notorious for amending government legislation, for picking out and correcting flaws. In fact, by the time the first bill for which I acted as a sponsor in the Senate even got here, there were 36 changes that the government itself wanted in addition to the ones we found ourselves as we went through it.
If you have a future chamber of lackeys, and that is what they would be, it would be difficult to have any sort of independent, second look at legislation.
Senator Ringuette: Mr. King, what research and analysis have you done with regard to the U.K. House of Lords? They have been looking at this issue for the last 10 years. If you have done an analysis, can you provide a copy to this committee on the mandate of senators that, supposedly, you have also looked at, as you would be responsible for drafting these bills? Have you also looked at the election aspect of the House of Lords and all the discussions over the last years?
Mr. King: Certainly, since I have been on the job in the last few years, we have been following the developments on the reform of the House of Lords in the U.K. We have not done any systematic analysis of the U.K. experience. We have from time to time, in terms of the development of our own advice to cabinet or the Prime Minister, drawn on some of the developments there. However, I would not say that we have ever systematically reviewed it or produced a report as such. We are following the issue and are interested in it. Some of my colleagues here today could speak in some detail about it. We have not produced a piece of paper or report that sums up what has happened in the U.K.
Senator Ringuette: You must have produced a memo, a note or something.
On an issue of such importance to the PMO, you would not be giving a verbal report on what is going on in the U.K.?
Mr. King: At the risk of disappointing you, senator, we actually have not.
Senator Ringuette: You are disappointing me very much because I see that maybe there is some frivolity with this bill coming from the PMO. All the different commissions in the last 10 years in the U.K. with regard to redesigning the House of Lords have indicated it would be favourable that the tenure of the Lords be for three electoral cycles, which could be anything between 12 and 15 years.
Has your department — because you are in charge of drafting this bill — prepared any notes, memos or reports with regard to what has been happening in the last 10 years for changes to the House of Lords in the U.K.?
If so, can you give this committee a copy?
Mr. King: I do not want to disappoint you but neither do I do want you to think we are being frivolous. I will be more clear in my response and will also ask my colleague Dan McDougall, who with his team has been much more intimately involved in the U.K. experience to respond as well.
We have looked at this as it has evolved. From time to time, although not often, we have provided advice to the Prime Minister on options in the development of the Canadian situation that may have included references to some of the things happening in the U.K. That is advice to the Prime Minister and I do not think I am in a position to make that available to the committee.
Mr. McDougall: We would be pleased to try to respond to any questions you may have about what has been happening in the U.K.
Senator Ringuette: I know what is happening in the U.K. I want to know whether you have been following what has been happening in the U.K. Have you submitted any notes or reports on the situation to the PMO? You must have. You cannot draft major legislation that affects a major institution of democracy in Canada without looking at what is happening there.
Between the House of Representatives and the Senate in the U.S., they have a 3:1 ratio. Members of the House of Representatives are elected for two-year terms and senators are elected for six-year terms. You must have done an analysis before putting forward any draft.
Mr. McDougall: As we said, we have studied what has been happening in the United Kingdom and in other jurisdictions in terms of how their Senates are structured. As Mr. King said, we do not have a particular report that pulls together all the bits of analysis we have done that we could provide to this committee.
Senator Ringuette: Are you saying that you have studied and studied the issue, but you have no written report?
Mr. McDougall: If you are looking for one particular written report, no. We do not have one particular written report.
Senator Ringuette: Do you have a report on this issue that you researched before drafting this bill?
Mr. King: I am happy to review everything we have on the U.K. experience. To the extent that things we have done are protected for a variety of reasons in terms of advice to the Prime Minister, we obviously could not make that available. However, I will look carefully, and if we have any type of analysis, I will be happy to get back to you or to the committee directly.
We have looked at this stuff en passant and read it attentively but I would not, by any stretch, describe this as any kind of significant influence on the way PCO has developed its advice to the government.
Senator Ringuette: There is also the question of an analysis of the impact of a renewable term. That is also a major issue in this bill. We are usually the second house to examine a bill but in this case we are the first. I would like to have your analysis of the impact of a renewable tenure as provided for in this bill.
I want this information in order to understand on what basis and principles Bill S-4 was drafted. I was on the committee that studied the accountability bill. Mr. McDougall was there. Under that bill, federal returning officers had a 10-year mandate. Yet, for senators, you are proposing an eight-year term. Where is the continuity? Your unit drafted both of these bills. What rationale says that returning officers should have a mandate of 10 years and senators a mandate of eight years?
Senator Cools: They pull it out of their heads.
Mr. King: In my opening remarks, I tried to set out the rationale that I believe guided the government in its decision to select an eight-year term. The Prime Minister, in his appearance before the special committee, spoke about the balance that I referenced between finding a time sufficient to enable a senator to discharge his or her function while, at the same time, providing an opportunity for renewal and new ideas in the Senate, and that happens to be what the government decided.
I could explain, to the extent that I am able, what is in the bill, but it is not for an official to explain why one length of term versus another was selected.
Senator Cools: Thank you, gentlemen, for coming before the committee. I listened with interest to your testimony and concluded that the term of eight years was just pulled out of someone's head. The primary example is the U.S. where the House of Representatives is elected every two years and the Senate every six years. It is my understanding that there is a profound relationship between the length of service in the lower and upper houses and that the minimum relationship is what the Americans use, which is 3:1. That is one reason why the British have come up with the 15-year term idea. When considering relationships between upper and lower houses, one does not simply pull these notions out of one's fancy. They are well-entrenched notions of the proper numerical relationship in terms of service.
In response to Senator Ringuette's question, you said you researched it extensively, yet the number of eight years is not based on anything tangible or substantive that you can put before us.
Mr. King: There is evidence of a 3:1 ratio that is preferred in the U.S.
Senator Cools: Ah, there is evidence, okay.
Mr. King: That is the ratio that is preferred in the United States. I have read some, although not all, of the analysis that went into the Wakeham report and the subsequent white papers where there was some discussion about the appropriate length of term. It is not as clear-cut in my mind as 15. You read in the papers between 12 and 17. At some point in time, the length of term has to reflect a country's history, objectives or aspirations, however you want to put it.
As I said in my remarks, if the government pulled eight years out of the air, I guess one could argue that Molgat- Cosgrove pulled nine years out of the air and that the Canada West Foundation and the Alberta Triple-E committee pulled two terms out of the air.
Senator Cools: I am not dealing with that; I am only dealing with the government.
Mr. King: It is the same principle. I think that, at one point, it would be appropriate for the Government of Canada to look back at various reform proposals over the decades and find some attraction to lengths of terms that had been advocated in the past.
Senator Cools: I think we should be looking to the situations and the law that led to the creation of the provisions in the BNA Act. By the time it was created, there were some very definite ideas on the relationship between the two houses in terms of length of service. It is an interesting concept that we say a lot about the Senate but you should do more research and put this before the proponents of these measures because, as soon as you drastically reduce the tenure of the upper house, you have to reduce the tenure in the lower house as well.
This is not so arbitrary as one might believe, because I am sure that American congressmen must tire of being elected every two years, and Canadian members of the House of Commons should understand that, sooner or later, as these changes move forward, it will not end here with those who are the proponents of change. At some point, the tenure in the other place would have to be reduced as well because it would be insanity to have a four-year term there and an eight-year term here.
Mr. McDougall: Along the same point as has been mentioned, typically, as Senator Cools said, there is a relationship between the two houses. One can conclude, as one looks around the world, that there is no one model and that a wide variety of experiences can be found.
As my colleague said in his opening statement, the average length of those terms is slightly over five years. The longest fixed term is nine years which is in the French Senate. The majority are much shorter.
Senator Milne: Are you including elected ones?
Mr. McDougall: They are indirectly elected. I was speaking of those that had fixed terms other than fixed for life, as is the case in the United Kingdom.
In the United Kingdom, the issue of the proper length of term continues to be an issue of debate, and it continues to evolve. As has been mentioned, the Wakeham Commission, which is one of the more comprehensive studies, was not clear-cut. They did not actually come up with a recommendation; they came up with a range of models that would result in various lengths of terms. They recommended a mixed system — part to be appointed and part to be elected. They put forward three different options in terms of the elected component. How those options would have worked with regard to terms would have depended upon which model was chosen.
For example, if it were tied, as one model was, to the elections for the European Parliament, it would have been on a five-year basis and they would have recommended three terms. They also looked at other models. They looked at a model which would have been tied to two electoral cycles, which could have resulted in a term as short as six years and as long as 10 years, depending on the circumstances of, again, to which elections it was tied. They ultimately rejected that model and decided to go with three electoral cycles.
One must also remember that their approach was fundamentally different from the approach the government is following here. They were very much looking at a comprehensive approach of trying to change all the variables at one time. Looking at the experience of that Royal Commission and various other white papers that have been proposed — including the current one put forward by the House Leader, Mr. Straw, which was voted on recently — they have had essentially the same level of success as have previous attempts of reform here in Canada. The all-or-nothing approach that is going on there as well has again resulted in no reform happening except for one measure they were able to get through with respect to the removal of most of the hereditary peers. After that, it stalled.
Senator Bryden: Mr. Newman, are you representing the Department of Justice?
Mr. Newman: Yes.
Senator Bryden: You made the statement, and you made it in the other study as well, that in the opinion of the Department of Justice this bill is constitutional. Is it your view that the Minister of Justice would issue a certificate that this government bill is consistent with the Charter?
Mr. Newman: I need not say it is consistent with the Charter, because the Charter is not at play here. The other part of Part V of the Constitution Act, 1982, which is outside the Charter, is certainly at issue. If the provision were to read: Would the Minister of Justice issue a certificate as to the constitutionality of this bill in relation to the amending formula, in relation to what can be done under section 44 vis-à-vis section 42, I would have no hesitation in saying that would be the recommendation to the Minister of Justice.
At the outset of the special committee, I was asked whether this bill came within section 44 of the amending formula. I said that, in my view, it fell squarely within section 44 and that was before I had the comfort of hearing several other constitutional lawyers and experts confirm that view before the committee. I am still of that view on behalf of the Department of Justice.
Senator Bryden: At the time this bill was drafted and presented to our house, the Minister of Justice was Minister Toews. He appeared before this committee on Bill C-2. At that time, he made an interesting statement about how this new Government of Canada views the type of certificate to which you have just referred.
In his introduction he said:
We should not shy away from controversial issues simply because somebody will raise a constitutional argument. I have not yet met a lawyer who is not prepared to raise a constitutional argument on every aspect of every bill we brought forward. The standard should not be that there might be a constitutional challenge. Constitutional challenges will always be brought forward.
We look —
— that is, Justice looks —
— at the issue of constitutionality. We also look at the issue of what policy we are advancing. Then we say to the various departments involved and the government lawyers involved, please marshal the evidence necessary to defend this particular policy initiative.
Is that the way you decide whether something is constitutional? Depending on what the policy is, you call in the troops and say, just as if you were instructing your counsel, "This is our objective''?
I will repeat:
Then we say to the various departments involved and the government lawyers involved, please marshal the evidence necessary to defend this particular policy initiative.
Is that what you did?
Mr. Newman: You are asking me to go from the general to the specific in relation to a statement the Minister of Justice made in another context. I am telling you that, as a legal adviser, I was engaged to look at these issues. I looked at them seriously and provided legal advice to the government. I considered all sides of the questions. I did so to the best of my professional ability as a constitutional lawyer of 25 years standing. I came to the conclusion that this bill was eminently defendable as a measure that could be enacted under section 44 of the Constitution Act, 1982. I am still of that view.
If I may suppose a comment in relation to the Minister of Justice, I believe he was saying something that was perfectly acceptable, which is that in this day and age, if there is to be a Charter certificate, one wants to be sure that, when a bill is brought forward, the legislative history is informed by: the policy rationale; the public policy choices open to the government; the social science evidence; the facts that will be necessary eventually if one wants to make, for example, a section 1 Charter argument where one has to demonstrate that this is reasonable and justifiable in a free and democratic society; and the evidence. In other words, if 20 or 30 years in the future a piece of legislation has to be defended, the record will be there so that the lawyers are in a position to defend it. I do not think there is anything untoward about such a statement or that it has an impact in any way in relation to this bill. I say that with all due respect. I read your remarks at second reading on this bill and was very impressed by them.
Senator Bryden: Thank you very much. Flattery will get you everywhere.
You were quoted from your evidence in the special committee hearing as saying that the Upper House Reference:
. . .does carry weight and it is important. I would say that in the current context of our constitutional amending formula, it is quite clear on the face of section 42, read with section 44, that any change to the fundamental essential characteristics of the Senate — which I would submit are laid out in section 42, at least for the most part — would require a complex constitutional amendment; that is, an amendment involving the provincial legislative assemblies.
What other essential elements are not laid out there? What are the parts that are missing?
Mr. Newman: For the most part, I would answer in this manner. I do not take the position, which one can reasonably take, that the only way to analyze the amending formula is by saying that, if it is not in clause 42, it must be in clause 44 or vice versa. As a rule, that will be the short answer to any question in relation to Senate reform.
I do take from the Senate reference that the court was concerned with the purpose of the institution, with the purpose of the amending formula then in play, which was the old section 91(1) and that, in certain circumstances, an amendment on its face in accordance with section 44, because it was an anomaly in section 42, might nonetheless have an impact on section 44.
I gave an example at the time. If there were to be a proposal — we are in the realm, obviously, of foolhardiness — that the tenure of senators be reduced to one year, I do not think that would pass the constitutional muster under section 44. The court would say, no, you are undermining the powers and purpose of the Senate, you are paralysing the Senate. I just do not think that would work.
I cannot simply say that anything goes under section 44 if it is not nominally under section 42. In my respectful analysis, the issue must be — is it, in pith and substance, an amendment directed to the Senate under section 44, which maybe has an incidental impact on another provision?
Senator Bryden: What would be included if it is in section 42? Would it be included in the powers of the Senate? Is that the sort of thing, if it is a power of the Senate, that we are trying to fix here under section 44 indirectly?
Mr. Newman: Yes. I am not in the business of trying to come up with scenarios by which section 44 would fail. I am of the view that, in this case, section 44 applies to this amendment. What I am trying to illustrate simply — and that was only my remark in relation to the Senate reference — is I do not think it is completely irrelevant in this day and age, what the Supreme Court of Canada said in the Senate reference. The Senate reference, as I said, informed our analysis as to what was appropriate and what would be viable.
When the court said in the Senate reference that, at some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as a sober second thought in legislation, I think that is important to retain be it after 1982 or not. Therefore, that does inform the analysis.
However, at the end of the day, we have to work with written amending procedures since 1982. To the extent that this amendment is, in pith and substance, an amendment in relation to the mandate of the Senate — and not in relation to the powers of the Senate, or the method of selection of senators, or the number of Senate seats in relation to the provinces, or the residence qualifications of senators — it seems to me that this is a section 44 amendment.
Senator Bryden: It seems to me that it is not.
I want to put another opinion in front of us here.
Professor David Smith, in his portion of the book Protecting Canadian Democracy, discussed the principle that must apply to any reform proposal of the Senate. This would really flow from the Upper House case decision. He said:
All reform proposals must respect the fundamental features and essential characteristics of the Senate: independence, continuity, long-term perspective, professional life experiences and sectional/minority representation. Lengthy tenure, free from the pressures of frequent electoral cycles, gives the Senate experienced members with diverse professional backgrounds who can bring some continuity and long-term perspective to the institution.
I believe a fair reading of that is, if the amendment affects the ability of the Senate and senators to have those characteristics, it must be negotiated with the provinces. I will not quote him again, but the guts of this case is to say that the Parliament in Westminster said the three provinces came here and made a deal. Now they are asking us to sanction it. I will read one thing — out of that came the Senate.
He said it was that Senate, the one negotiated with the powers and independence and so on. The Supreme Court stated:
It was that Senate created by the Act, to which a legislative role was given by s. 91. In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada. . .
Surely, to take tenure to age 75 and to make it eight years renewable, or whatever number of years, will have a significant effect on the independence, continuity and certainly on the longevity and institutional memory that is available. It will be a very different institution with an eight-year term than it is where a person rapidly gets more independent than usually the person that appointed him wanted him to be.
Mr. Newman: I very much appreciated reading your second reading speech and the quotations from Professor Smith and the Senate reference. Some of them speak to policy and the policy choice. As my colleague from the Privy Council Office, Mr. King, has indicated, the Prime Minister is on record as saying that he would be flexible in terms of looking at possibly a nine-year term or such term as the committee might propose that is reasonable. These are certainly factors that you will wish to consider as the special committee considered as well.
At the end of the day, we are applying the amending formula of 1982. We are doing so with this bill in a way that comes within the ambit of section 44. If eight years is insufficient, or if nine years or another number is more to your liking, then that is obviously up for consideration. I do not think we disagree fundamentally in terms of the approach one must take to the role of the Senate in terms of applying the amending formula.
Senator Bryden: Yes, we do.
The Chairman: Senator Bryden, I must move on because you have had 15 minutes and three senators have not asked questions yet.
Senator Joyal: First, I would like to refer to the presentation by Mr. King. The Molgat-Cosgrove report that you quote as being a pronouncement on the legality of a nine-year term states on page 36:
The introduction of a fixed term would require an amendment to the Constitution. However, we understand that a fixed term of nine years would almost certainly not require the use of the general constitutional amending procedure. . .
Later he said that the amendment would therefore be within the power of Parliament.
It is conditional. I want to be clear. I am not trying to mince words with you, but if I see a lawyer and he states "would,'' it is not "is.'' There is a doubt at that time. That is why I want to be precise in quoting the report. I read the report at length and, in my opinion, it does not contain any legal discussion of the scope of section 44. I read it twice, in French and in English, and I did not find any real discussion of the scope of section 44. That is probably why the drafter of the report has used the conditional. I do not think we can quote Molgat-Cosgrove as being the final word on the constitutionality of a nine-year term. That is my first comment to you on this issue.
Second, Mr. McDougall, Wakeham rejected eight years, as you know. Wakeham stated that, "Having considered this option we concluded that terms of this length — which was eight years — would be too short for the purposes of creating a kind of second chamber which we envisage.''
In my recollection, there are few government papers; the last white paper talked about 15 years, Wakeham talked 12 to 15 years. For the public, Wakeham is the Royal Commission on the reform that the Lords established in 1999 and its report was produced in 2000. The majority of reports I have read have established a range of 12 to 15 years. We are at that bracket level.
The government reference for an eight-year bar for an appointed house is not very large. In fact, the largest bar reference is between 12 to 15 years. I want to be sure that we understand the British papers. There are more than 12 that have been published since 2000.
I would like to address my question to Mr. Newman. I enjoyed reading the paper you wrote in 2003 under the tutelage of Professors Hogg and Monahan.
Mr. Newman: Thank you.
Senator Joyal: The essay is entitled: Defining the `Constitution of Canada' Since 1982: The Scope of the Legislative Powers of Constitutional Amendment under Sections 44 and 45 of the Constitution Act, 1982.
I repeat, section 44. The bill alleges in its "whereas'' clauses that it is on that section of the Constitution that this bill was introduced, and I thought there was a natural understanding of the advice you would give to your minister on the basis of your document. You are under a solicitor-client privilege so we cannot know what you said to your minister. If you said to your minister there is a doubt, then the minister can decide whether or not to take the initiative of moving with the legislation. You can also say to not do this because the court will quash your bill or legislation later if it is adopted. I know you cannot tell us that type of information.
However, I am trying to understand what you stated about section 44. Am I correct in concluding, especially from page 467 — I am sorry if I am quoting without giving you the document.
Mr. Newman: That is all right.
Senator Joyal: You stated that interpretation of section 44 is based on its former previous article section 91(1) that was abolished by the repatriation of 1981 and succeeded by section 44 and, interpreting section 44, we must resort to the interpretation of the Supreme Court of Canada of 91(1) in the case of the Senate reference.
Mr. Newman: That is a fair statement. Obviously, I was not talking about Senate reform in that paper but, yes, I think I was saying that the Senate reference was relevant to the scope of the legislative power of Parliament to amend the Constitution.
Senator Joyal: Exactly. You also stated that the five formal amendments made in virtue of section 91(1) of the Constitution Act, 1867, since 1949 have been, in the court's words, "housekeeping'' matters.
You put the word "housekeeping'' in brackets because they came from the Supreme Court of Canada reference itself.
In other words, the previous reincarnation of section 44 in the Constitution, as it was interpreted by the court, was a housekeeping power.
Senator Cools: That is right. It still is.
Senator Joyal: That is more or less what I understand from the five formal amendments made under section 91(1) and on the use of section 44 since 1982. Section 44 has been used since 1982.
Mr. Newman: Yes, it has.
Senator Joyal: It was used every time in the context of housekeeping issues — that is, changes that did not change the nature and functioning of the institution. Am I qualifying you too much when I say that?
Mr. Newman: No, you are not. That is fine, senator.
Senator Joyal: In other words, if section 44 is housekeeping as you stated — and you lamented at a point there, too — you quoted from a lengthy article by Professor Monahan criticizing that reference in the bar review of 1981.
Mr. Newman: Professor Hogg.
Senator Joyal: Yes, Professor Hogg.
You said that Professor Hogg lamented that the Senate reference decision was a victory for those who wish the Senate to remain exactly the way it is now, and that in this country one must be strong to believe in constitutional reform.
Then it is you who said, "In retrospect, he was partly right.''
Mr. Newman: Partly.
Senator Joyal: "The Senate remains as it was, but the most major constitutional reform in recent history in Canada was about to be launched " and of course we refer to what happened after.
If I understand your comment, you share the views of Professor Hogg in that you do not agree with the result of the interpretation of the Senate reference.
Mr. Newman: Thank you for parsing my article, senator. I think it is neither here nor there. I respect the decision of the Supreme Court of Canada. It was a unanimous judgment, I believe, of nine judges. It stands for what it says. I certainly drew upon what Professor Hogg and other professors had to say about the scope of the legislative power to amend the Constitution prior to 1982. I do not think that gets us too far.
One must be careful with an expression like "housekeeping.'' The Senate is a house, and so is the House of Commons. Keeping house in the Senate and the House of Commons can mean different things to different people, and a housekeeping amendment may be to adjust the terms of senators. Some may see this as fundamental change and others less so.
I would simply add to the pantheon of scholars that seem to be in the process of being quoted today, besides Professors Hogg and Monahan, Professor Beaudoin, former senator, and Professor Stephen Scott of McGill University.
[Translation]
Former constitutional experts and current Quebec Intergovernmental Affairs Minister, Mr. Benoît Pelletier, was of the view that this amendment did not require the involvement nor the approval of the provinces and that it was an amendment well within the scope of section 44 of the Constitution Act, 1982.
[English]
This is the view of Professor Hogg; I will not quality whether it is mine. Simply said, the best interpretation of what happened in 1982 was that it overtook the ruling of the Upper House Reference, that the 1982 amending procedures now say explicitly what changes to the Senate cannot be made unilaterally by Parliament. They are the focus of the matters in section 42. Other aspects of Senate changes can be done under section 44.
The Senate reference is not, in my view, water under the bridge, nor is it necessary for me to personalize all these views. They are on behalf of the Department of Justice Canada. We have great respect for the role of the Senate and have taken it into account in the development of this bill. We are of the view that this is a section 44 amendment.
Senator Joyal: You quote Mr. Pelletier but I can quote him too. In his work from 1996, la modification de la Loi constitutionnelle du Canada, Carswell, Mr. Pelletier states as follows:
[Translation]
We are of the view that the constituent authority vested in Parliament under section 44 of the Constitution Act, 1982, is as restricted in scope as section 91.1 was deemed to be by the Supreme Court of Canada. Thus, pursuant to this section 44, only secondary aspects of the operations of central institutions may be amended by Parliament.
[English]
I will repeat it: Only the secondary aspect of the functioning of the central institutions. That was Mr. Pelletier in 1996.
[Translation]
Mr. Newman: And when he was confronted with a bill ten years later, which would have accomplished the same thing as Bill S-4 would, he spoke on behalf of the Government of Quebec. The Government of Quebec agreed that this amending provision was within the federal Parliament's purview.
[English]
Senator Joyal: I think what is written in the text of a constitutional textbook is reliable.
Mr. Newman: Okay.
Senator Joyal: I say that. I do not want to qualify the other statement.
[Translation]
Senator Beaudoin, on page 269 of "la Constitution du Canada,'' third edition, 2004 states:
The case law regarding the scope of sections 91.1 and 92.1 of the Constitution Act, 1867, since repealed, remains relevant insofar as these sections are restated as sections 44 and 45 of the Constitution Act, 1982, and it is therefore important to take them into account.
Mr. Newman: I absolutely agree.
[English]
Senator Joyal: In other words, what they wrote was written in the objective environment of a classroom. Their textbook is essentially what they think of the scope of section 44. I do not mean that someone cannot change opinion. If anyone can change their opinion, I can, too. However, on the basis of what they have written, they have given a narrow interpretation to section 44 — only housekeeping matters and secondary aspects of the functioning of the institution. If you change the term to a point where you change the nature of the institution, and you gut it and its capacity to give an independent point of view, this bill does not fly because eight years would have given the power to six Prime Ministers to appoint 100 per cent of senators. Where is the independent point of view in a system that is based on adversary opinion in a discussion like we are having today? That is the answer that eight does not fly as a secondary amendment to the nature of the institution.
The Chairman: Mr. Newman, I would like you to respond.
Mr. Newman: Generally speaking, I agree with everything you have read, Senator Joyal, including the observations of Professor Beaudoin in his book. I do not think there is any inconsistency there.
However, the fact of the matter is that before the special committee, former Senator Beaudoin — and I do not think he has any particular axe to grind — who is still a practising constitutional scholar at the University of Ottawa said, and I am paraphrasing, that no doubt Bill S-4 is constitutional and reflects what was done in 1965 to reduce tenure. The 1980 Supreme Court of Canada decision said we cannot change fundamental characteristics, but we have an amending formula now, and tenure is not one of the four issues listed in section 42, and so on.
Having looked at the bill in light of all the concrete circumstances, I simply suggest that the consensus view on this bill and the majority of constitutional scholars who appeared before the Special Senate Committee on Senate Reform were of the view, as the government is, that this can be accomplished under section 44.
The Chairman: Senator Joyal, before going to your next point, I want to say, honourable senators, we have about two minutes left but we started late because senators did not get here from the Hill. With senators' leave, I want to extend this session for another 20 minutes. I have four senators who have not asked questions yet.
Senator Joyal: I have already occupied a lot of time. I understand the pressure of time. If there is time left and you can come back to me, I would be grateful.
When you appeared on September 7 in front of the legislative committee, the following question was put to you by Senator Austin, and I put the same question to you:
Second, on the question of at some point a reduction in the term of office might impair the functioning of the Senate, how do you determine that eight years is constitutional? Would one year be constitutional? If it would not be, then why eight years? You know where that argument is going.
Your answer:
Let me get to your second question, if I may, the point that the Supreme Court had said that, and I take it almost as a spectrum, at some point a reduction would or could compromise the effectiveness of the Senate as a chamber of sober second thought in the legislative process. I will not stand on solicitor-client privilege. I believe I can say right now if any piece of legislation came forward and tried to reduce the tenure of senators to one year, it would not pass muster. That would obviously affect the nature of the Senate to that degree.
I totally agree with you.
Mr. Newman: All right.
Senator Joyal: I totally agree with you that section 44 does not give us or the Parliament of Canada the power to change or to bring in change that would or could compromise the effectiveness of the chamber as a chamber of sober independent, second thought.
I agree with you that section 44 allows Parliament to bring in housekeeping or lateral reform, the way Professor Pelletier has written it. If we would bring the term to 75 from 70 I think it would pass muster easily. The problem is you take an institution that is based on a potential span of 30 to 75 years and reduce it to 70 years, abolishing the 75-year limit, and then none is renewable. You change totally the nature of the institution by that. I do not understand how you can contend that, at the same time, the principle established by the Supreme Court in the Senate reference still flies and think that eight-year terms, by all the standards we have defined, are still acceptable.
Mr. Newman: I know this is becoming an old saw but the fact of the matter is that, since 1965, since the last amendment was done by Parliament to Senate tenure, the first and only amendment reduced tenure from life to attainment of the age of 75 years. I understand that the average length of senatorial terms has been 9.25 years. You mentioned earlier that, in the Molgat-Cosgrove joint parliamentary committee which studied Senate reform, the committee had simply suggested that it would — which was conditional — pass constitutional muster with a nine-year term. That committee, of course, had the benefit of constitutional scholars as well. They may not have summarized the evidence in the report. I would suggest to you that, when the committee was saying "would'' in that context, it was saying "if we went ahead with this amendment, it would be constitutional.'' In other words, we have not passed it yet, but if we did, it would be all right.
Conditional is relative to the context.
I do not think I can take it much further, senator, except to say that, certainly, I understand your preoccupation, I understand your concerns. This committee has terms of reference that will allow it to study the length of term. I think we agree on one thing. If we agree in principle that section 44 can be used today to change the tenure of senators from 75 years to 70 years, I was going to propose modestly to change tenure from 75 to 74 years. Once we are on that ground, I think it is partly a question of degree. Now there is a term for senators and that term is 45 years. We can discuss that in due course.
Senator Cools: There is no such thing as a 45-year term. The government keeps repeating this and the public picks up this sort of thing. The term is a place for life to age 75. It is not a term of 45 years. It is misleading and it is not worthy of you, Mr. Newman, to join that misleading choir.
Senator Fraser: More of the same. I will ask again a question that I asked in the special committee and did not get an answer then. You have had lots of time to reflect in the intervening six or eight months. We are all in agreement that reducing the term to one year could not be done without provincial agreement because it would change the fundamental nature of the Senate. We are in agreement on that?
Mr. Newman: Yes, we are in agreement that would be a section 42 amendment, I think.
Senator Fraser: However, you and various other people, including the Prime Minister, have come before us to say that eight years is okay under section 44. Where, then, is the crossover point, and what is the reasoning that says where the crossover point comes? How does one calculate where the crossover point comes, where one has to resort to section 42?
Mr. Newman: I think it is contextual. One starts with the amending formula. The tenure of senators is not mentioned in the amending formula. It could have been put in section 42 once and for all to clarify the situation if that is what had been intended by the framers in 1982. They did not do that, which leaves it open to the reasonable supposition that some changes to tenure are acceptable under section 44, but not necessarily all changes to tenure. As the Supreme Court said, at some point, a reduction in tenure could affect the independence, the function of sober second thought of the Senate. It is a question.
Where does one go with that? One must contextualize it. One looks at other upper houses. How do they function? What is the length of term of those houses? What is the longest length of term? Is there any difference between an appointed upper house and an elected upper house in terms? On that basis, one starts to come up with some numbers. One also looks, as I believe Senator Cools quite properly pointed out, to the relationship between the upper house and the lower house. If one were to proceed with that sort of comparison, then it would be eight years versus an average term in the House of Commons of four years, except in minority government situations. It could go four years; the average length in a majority situation is four years. Then, you would have twice that. Maybe that is not enough from your perspective, but I would suggest respectfully that that is from a policy perspective and you are in a position to, as one would say in French —
[Translation]
— enhance the legislation with an appropriate term length.
[English]
Senator Fraser: It has seemed to me from the beginning that this bill, as drafted, would in fact be suited to an elected Senate and, indeed, the Leader of the Government in the Senate said during the first day of debate that it had been produced having in mind the government's will to establish an elected Senate. There is now, as we know, a bill before the House of Commons to do just that, although it does not actually say it is for elections. I would argue that it is indeed for elections.
That bill, however, has raised shall we say, serious constitutional questions in many minds, which makes its likelihood of becoming law any time soon, chancy.
I remain perplexed about whether there is any possibility at all of reconciling in one bill an appropriate system for an appointed house. This is what we have now and are likely to have, unless and until we get an elected one, which I do not think will be for a while, reconciling what is appropriate for an appointed house with what is appropriate for an elected house. For an elected house, an eight-year renewable term is logical. For an appointed house, the Wakeham commission cited here has concluded it is not really appropriate. The British government has agreed with that. I think short terms of that nature would destroy part of the fundamental nature of the kind of upper house we now have which we inherited from Britain.
Have you done work, especially in the last six months or so since we last met, to try to figure out if there is some way to reconcile these matters, these conflicting sets of objectives?
Mr. King: The work that has been done since we last met, I believe it was in early September, has quite frankly been to do with completing the policy development. This was the preparations to put the other bill, Bill C-43 in the other House. The Prime Minister, when he was in front of this committee on that same day, indicated fairly clearly, I thought, that this was the next step in the process.
I would not say we have taken a step back and adopted the position that you have on the prospect of a bill like Bill C-43 passing any time quickly and therefore return to the issue of Bill S-4. We continue to work on both at the same time with the understanding and hope that at one point they will both be in operation together.
However, as I said at the outset, it is the government's clear position that Bill S-4, in and of itself, is able to stand on its own merit.
Senator Fraser: That is the government's position. That is true.
I have one last question, which has to do with the fact that this bill would also abolish the age limit. My first reaction to that was to envisage a Canadian version of the American Senate which has, as you know, a high proportion of elderly people.
Some years ago, I was at a meeting and was introduced to the junior senator from some state. He was 79 years old. The senior senator from that state was well into his 90s and continued to serve for a number of years after that. We had decided 42 years ago that we did not want to do that anymore and here we are opening the door to doing it again.
Then I started to think about whether there were other reasons than purely political ones for removing the age limit. I am not asking you to comment on the political decision but is there a legal reason that, if we are reopening this matter, would lead one to say we should abolish the age limit?
For example, were there any fears that the Charter might come into play? You said earlier, Mr. Newman, that the Charter does not come into play here but are there legal reasons for saying you should abolish the age limit?
Mr. Newman: Where the Charter could come into play is if we were to take the other example Senator Joyal put forward, which was in order to introduce a bill that stated senators shall vacate their place in the Senate after the age of 70 or, as some have said, 65 years.
At present, the weight of authority is in the other direction. Where there are invidious distinctions based on age in legislation, unless there is a real bona fide operational reason, then they should not exist. We are seeing mandatory retirement dropping away.
Since 1965, we are smoking less, we are getting our omega-3 fatty acids, we are living longer and people are functioning better. Who is to say that an arbitrary cut-off of the age of 75 is as appropriate as it might have been?
In the context of eventually an elected or some form of popular consultation, as under the other bill were it to go through, that would obviously play into it as well.
One can think of someone like Ted McWhinney running, for example, or I have a colleague running for the equivalent of "bâtonnier'' of the Bar, a bencher in Ontario, a former head of an administrative tribunal who is 84 years old and still very active. Why should there be an arbitrary cut-off? I do not think it was done necessarily for a legal reason.
It is true that there is a theory afoot to which I ascribe to a certain degree, that the legislative powers of constitutional amendment should be subject to the Charter. However, this particular amendment, if it is legislation, why should it not appear under the Charter?
Once you have a provision in the Constitution, it is part of the supreme law, so the Charter does not affect it. That is why nothing would affect the 30-year limit presently or the 75-age limit that is there. I do not think it was a foremost legal consideration for removing the age limit.
Senator Andreychuk: There is an age discrimination of 75, and I think we have changed a lot since 1965. I find it personally offensive to characterize people over 75 as incompetent. That is essentially what we were saying, that they do not have the capacity to contribute in a way someone under 75 has. I think we have come a long way to dispelling that myth. I will not touch on that.
This whole debate about making everyone's term one year would impair the independence of senators. They would be reliant on everyone else to figure out what the Senate is all about, and the Senate's role in the political system, where we continually talk about experience as well as independence, would be compromised.
The only thing that troubles me is that today, we have a lot of vacancies. A prime minister could appoint everyone at the age of 74 and dramatically change this. However, it would be a question of degree if we changed everyone as opposed to 10 or 20 or 30.
I understand why one year for everyone seems to threaten the independence and our role in the Senate. Whether it is eight, nine or 10 years, I do not know where the break-off point is. We have had prime ministers who have put people in because they wanted a particular vote.
In my time, without naming names, a senator was asked how would she vote on a particular bill. "I answered, I got in and I stayed for a very short time,'' was her answer.
In my opinion, the question is whether the breaking point is the fact that everyone has eight years. Will that change the house? Right now, the Prime Minister can appoint at his discretion someone who is 40, 50 or 74 years of age. He can take a group or he can delay vacancies and appoint them later. I think everyone has done that at some time for whatever reasons were justifiable or you can say politically motivated. I am not worried about that.
If we put the system in and have an eight-year term, is that any different than the mix of short and long that we have constitutionally now? Does the fact that everyone will now face an eight-year term dramatically change and impair functioning, constitutionally speaking? Am I making myself clear?
Mr. Newman: I appreciate your question because it puts this whole issue into context. There are apocalyptic scenarios whereby under this legislation, without anything more, within a short period of time we will have a prime minister ensuring that there is a one-party Senate.
The reality is that the Prime Minister's function, according to constitutional conventions, means we have a certain level of political culture in the country. The extreme scenarios of how discretion will be exercised sometimes shed more heat than light.
It was a practice at one point for a given prime minister to appoint people of a certain age whose terms effectively were meant to be much shorter than eight years because of the 75-year cut-off, which is invidious in its own respect, as we have said, in terms perhaps of age discrimination. Some might say the same about the 30-year limit as well.
Maybe one must ask, in the absence of this type of modest change to tenure, is it better that the country find itself in a situation where the Prime Minister, through constitutional convention, has unfettered power to advise the Governor General to make any choice that he or she currently decides with respect to the basis of capricious or arbitrary criteria in certain circumstances?
Conversely, should we move toward a system that is mildly more transparent whereby we create an institutional expectation so that the Prime Minister would exercise his or her judgment wisely in appointing an upper house? It is often said that the upper house we have is the function of the Prime Minister in terms of his or her choices. It is a policy choice to move toward a term limit, but it could carry with it advantages as well for the legitimacy and functioning of the Senate.
Senator Andreychuk: You might not want to not answer the following question. In an ambassadorial system, we have gone from two to four years, not only in Canada but in all countries. The "standing joke'' is often that the first year is spent settling in; the second year is spent doing the job; and the third year is spent looking ahead to the next posting. The effectiveness is put into place for the person. There is also the question: Does the person still represent his or her country? We do not want an individual to stay long enough to succumb to "localitis'' so two to four years seems to work. History has proven that is a good mix for various reasons. One of the policy, not legal, reasons was that eight years, not considering a minority government situation, could conceivably equate two terms on the other side. Is that a good policy reasoning or could we say 12 years might be even better?
Mr. King: The eight-year term is partially driven by a 2:1 ratio — two parliaments in the House. If Bill C-16, now before the Senate, ever moves forward, that would be easier to predict. That is part of it, senator. The other part is that we have looked attentively at other studies done over the years that have gravitated in and around this, be it nine years recommended in the report of Molgat-Cosgrove or eight years in some of the other studies. The government's view is that it is somewhat akin to the point you just made on the length of ambassadorial appointments. Eight years would seem to be an amount of time whereby a senator could come to the job, learn the job, form the job and then play whatever role is necessary in handing off the institutional memory and that sort of thing.
Again, the government, the Prime Minister in particular, has indicated the government would consider other limits that were consistent with a series of principles he enunciated at the time. It is part of a contextual thing. It is a time that, for me, resonates in terms of the history of our deliberations on this issue.
Senator Cools: The position of the eight years, which you say is your legal position, sounds to me like a conclusion seeking a justification. I have difficulty finding the legal or constitutional system upon which you are intending to base that. I find your arguments quite unconvincing in this regard but I admire you for sticking to your guns, in a way.
Mr. Chairman, these issues are large and perhaps these gentlemen should appear before the committee again. I want to raise some questions about the different treatment of judges and senators. In 1867, at the outset, senators were in a superior position and, up to 1960, they remained in that position. A 1960 amendment affecting judges was not described as a change in tenure but rather as mandatory retirement. That change was done by address in the U.K.
A few years later, the same change was made for senators under section 91(1) by a bill before the Parliament of Canada. I have done a fair amount of reading on the subject and have a good understanding of the political and legal forces at work. I will get to that.
I would like to speak to the drafting of the bill. Did one or all four of you work on the drafting of the bill? Are you qualified and competent to answer questions on the drafting?
Mr. King: The physical drafting was done by drafters.
Senator Cools: I would like to pose a few questions. Essentially, you are saying that Bill S-4 is an amendment under section 44 — which I do not believe applies, but barring that — to amend sections 29(1) and (2). My view is that you are not amending those sections but gutting them totally.
Subsection 29(1) of the BNA Act clearly states:
Subject to subsection (2), a Senator shall, subject to the provisions of this Act, hold his place in the Senate for life.
My first question is: Why are you repealing or abolishing the provisions within this act that make those Senate provisions, being section 29, subject to the entire BNA Act? This is a profound change. In other words, as written, sections 29(1) and (2) are subject to all the other provisions of the BNA Act. It is proposed in Bill S-4 that section 29 be subject to only sections 30 and 31. That is a profound change which I do not think anyone has picked up on. I would like a response to that.
The second question is not easy to answer so take your time to think. The current wording in the subsection 29(1) is:
Subject to subsection (2), a Senator shall, subject to the provisions of this Act, hold his place in the Senate for life.
Subsection 29(2) of the BNA Act reads:
A Senator who is summoned to the Senate after the coming into force of this subsection shall, subject to this Act, hold his place in the Senate until he attains the age of seventy-five years.
In the relevant proposed sections of Bill S-4, the words "hold his place'' are gone. A mysterious constitutional creature has appeared called, "a place in the Senate.''
Proposed subsection 29(1) of Bill S-4 states:
Subject to sections 30 and 31, a Senator shall hold a place in the Senate for a term of eight years.
Proposed subsection 29(2) states:
Notwithstanding subsection (1) but subject to sections 30 and 31, a person holding a place in the Senate on the coming into force of the Constitution Act, 2006 (Senate tenure) continues to hold a place in that House until attaining the age of seventy-five years.
Honourable senators, there is no such thing as "a place in the Senate.'' There are only senators' places. Bill S-4 has changed the language totally — a language that was carefully supervised in the scripting of the BNA Act in England. The expert draftsmen, who were Lords, paid a great deal of attention to each word.
I want an explanation as to why the language has been changed and to the significance of that change in moving from "his place'' to "a place.'' I want to know why the proposed sections have been severed from the BNA Act. I believe it is the same thing again, a preparation for another time — to be carried along somewhere else — and I want a good explanation, gentlemen. You did not notice that, did you?
Mr. King: I may ask my colleague, Mr. Newman, to help me out on this.
I can answer the second question first. My understanding — and I will have to verify this — is that "his'' or "her'' place evolves into "a place'' purely as a function of the modernization of the language of drafting.
Mr. Newman: Yes, gender-neutral language.
Mr. King: You should see this in other bills as well.
Senator Cools: I hope you understand what you said is groundless in law. The gender concerns could have been met by saying "his'' or "her'' place, but there is no such thing as "a'' place in the Senate. There is only this senator's place and that senator's place.
If you would look through the BNA Act, it always refers to this or that senator's place, and where it does not, it is consistent. For example, the margin note to section 29 states "tenure of place'' but the term "a place in the Senate'' has no constitutional existence in the BNA Act. I do not understand how it can suddenly be applied in this bill. I want a good explanation on this but you have not given it to me yet.
You could have stayed with the gender concerns very easily, but you have not done that. You have created a new concept; "a place in the Senate'' is a totally new constitutional concept.
Mr. Newman: I will resist a flippant remark about a happy place — I hope it is a happy place.
When bills are drafted, we work with English and French legislative drafters. We have a program in English and in French and they work according to their own internal conventions as well. Whenever it is possible for them to modernize language, they do so as long as, in their view and our view, they are not affecting the substance of the text.
Since the Edwards decision recognizing that women are persons for purposes of Senate appointments, it is certainly a delicate matter to continue referring to "his place'' and the like. Therefore, I think the legislative choice was simply to substitute "a place'' for "his'' and not say "his'' or "her'' place either. That is something we can consult with the drafters on. If there is a concern or a way to adjust it, I do not see why we could not give it a good look.
Senator Cools: I appreciate your openness. Just know that.
The Chairman: On the first question?
Mr. Newman: On the first question, which related to why the text says "subject to sections 30 and 31'' rather than to the provisions of this act —
Senator Cools: Not "rather than to,'' in addition to.
Current section 29 included both, subject to the subsection and also subject to the provisions of the act. In other words, the previous one maintains the integrity of the entire BNA Act and the integrity of those sections as a part of the BNA Act, meaning that you always must read one in conjunction with the other.
Bill S-4 is a severance and it is a serious matter. It means that this section has now been severed from section 18 and even section 17. There is a kind of schizophrenia; it is extremely serious and I will not drop it.
Mr. Newman: If I can respond on your first point and, again, we can have a look at this. From your perspective, my answer probably would be more controversial but please hear me out. I will be brief.
Senator Cools: I will.
The Chairman: It has to be brief because we are well over our time now and Senator Hays has not asked a question.
Mr. Newman: It will be brief; I am just trying to respond to the senator. I appreciate the time concern.
When section 29(1) was amended in 1965, there were senators who were entitled to sit for life. Today, there are no senators who are entitled to sit for life perforce of the fact that all senators currently sitting have been appointed under the condition of section 29(2). In other words, all senators must retire as of the age of 75, or cede their places, as you may prefer.
Since life tenure is no longer a condition of sitting in the Senate — and that was the inexorable effect of the 1965 amendment, no senator is entitled to life tenure — then the drafters have simply repealed the whole provision. Rather than say, "subject to subsection (2) a senator shall, subject to the revisions of this act, hold his place in the Senate for life,'' there is no room for that provision anymore because no senator does hold a place in the Senate for life.
In respect of your more particular concern that the words "subject to the provisions of this act,'' are no longer there, again, from a modern drafting perspective, the provisions of the act that are operative on whether a senator's tenure continues — say during this eight-year period — is section 30, if a senator resigns, or section 31,
The Place of a Senator shall become vacant in any of the following Cases:
Those are set out in section 31. That is where the drafters suggested the substitution of sections 30 and 31.
Again, we can examine this with the drafters and perhaps make recommendations in that regard whether one should continue to revert to the wording "subject to the provisions of this act.''
The Chairman: When you look into that, will you let the clerk of this committee know in writing one way or the other so we can respond back to the honourable senator?
Mr. Newman: Yes, we can do that.
Senator Cools: To finish, I would be willing to move a motion inviting these gentlemen back. There are many other large issues here and I would be quite prepared to do so. Could they come back at some other time?
The Chairman: The steering committee has been looking at witnesses and times, and so on. We have heard your suggestions but we have a list of witnesses and times now.
Senator Cools: Perhaps I could move such a motion so that it would really be looked at. I have a lot of questions. I do not know about anyone else, but I have been asking many questions for many months and I have not got any answers yet.
The Chairman: The steering committee can take it under consideration. We have heard your representation and we can take it under consideration as we consider other witnesses in planning.
Senator Hays: Having served on the special committee, I have always regarded this issue we are spending time on now as something that really was put in issue at the end of the process we normally go through when we consider a bill. Personally, I am in agreement with those who think that an eight-year renewable term is not a good idea for an appointed legislative body. As a matter of record, I have indicated that a 12- or 15-year term would be a good idea. For me, that would be the more relevant question than an eight-year renewable term.
In any event, we have put in issue what is before us in a constitutional context. Referring back to the document Senator Joyal quoted from, and looking at the view expressed so eloquently by Senator Bryden, we have the opinion of the Laskin court in the Upper House Reference. To go to your paper — a very good paper that I have read, but not recently — I want to confirm that, when you refer to housekeeping amendments, are you talking about a section 91(1) amendment or a section 44 amendment?
Mr. Newman: I have not read it recently either but my recollection is that the Supreme Court of Canada accepted a characterization that had been made, probably in a government white paper at the time, that certain constitutional amendments had been of a housekeeping nature and did not involve —
Senator Hays: But it comes from the Upper House Reference?
Mr. Newman: Yes, it does.
Senator Hays: Nothing in litigation had dealt with section 44 after the 1982 amendments. For instance, was the Campbell case on the Representation Act, 1985, which went all the way to the Supreme Court and made rather profound changes, called "housekeeping'' by anyone? I do not remember that.
Mr. Newman: I do not recall that term being used by Chief Justice McEachern in the British Columbia Supreme Court or by the British Columbia Court of Appeal. Leave to appeal was sought from the Supreme Court but the court denied it.
In any event, the section 44 amendment that was the Constitution Act, 1985, the Representation Act, was upheld by the board.
Senator Hays: Yes, and it is a rather far-reaching amendment.
Mr. Newman: Yes, it is.
Senator Hays: I think it is only one of two amendments to the Constitution that have proceeded under section 44, the other one being Nunavut.
Mr. Newman: Yes, the addition of a senator from there.
Senator Hays: That is also fairly substantial, dividing the Northwest Territories.
We know what position the Laskin court took on the reference in 1979. What do you think the McLachlin court would say, given that it did not give leave to take Campbell beyond the Federal Court of Appeal? Of course, Nunavut was not challenged.
Mr. Newman: I would be getting ahead of myself as a legal adviser if I tried to speculate on what position the court might take. I have stated the view of the Department of Justice and the Government of Canada that we think this is a section 44 amendment. Whether it be characterized as housekeeping or not, or whether that is the appropriate terminology for today, it was a handy term for the court to use to characterize five of these amendments prior to 1982. Generally speaking, most constitutional scholars are of the view that section 44 has about the same ambit as the old section 91(1) as interpreted by the Supreme Court in the Senate reference. I think that was one of Senator Joyal's points.
Whether we continue to use the terminology of "housekeeping,'' whether it is appropriate in this day and age in relation to these types of amendments, is a good question. Out of curiosity, I will look closely at Campbell again to see whether the term was actually used by the court.
Senator Milne: Are you going to suggest that we keep these gentlemen before us for a longer period of time and then put the rest of our witnesses into a second panel after we have had a break?
The Chairman: Yes. After the second-round questions are heard, we will suspend for 30 minutes and then hear from the second and third groups as one panel.
Is that agreed, honourable senators?
Hon. Senators: Agreed.
Senator Milne: Gentlemen, my question follows on from what Senator Fraser was saying. This bill is proposing to take out the upper age limit for senators. I suspect that one of the witnesses we will hear from after our break will tell us that, in the future, if this bill passes, it will be possible to appoint senators who are in their eighties. As I am aging, I realize that, unfortunately, the prospect of absenteeism due to illness does increase as one ages. Where does that leave the idea of breathing new life into the Senate, of renewal, of younger ideas?
Senator Joyal: The bill says "modernize and bring new blood.''
Senator Milne: Precisely.
Mr. King: You are describing a context in the future when Bill S-4 has been given Royal Assent and the Senate is still operating as a wholly appointed body. I believe that would be part of the series of decisions that a prime minister would have to make before making a recommendation to the Governor General, who would then appoint.
I am persuaded by the point made by my colleague, Mr. Newman, earlier when he gave one or two examples of Canadians of that age who are ready, willing and able to make commitments of this magnitude.
I am not all that skilled on demographic or actuarial predictions, but it would seem to me that those cases would likely be the exception more than the rule, but the prime minister would have the opportunity to make such appointments. I do not think that bringing in new senators to renew and provide new ideas is tantamount to bringing in younger senators.
Senator Milne: That is an interesting point of view.
Senator Bryden: One of the concerns is that sometimes prime ministers, for a very good reason, at least in their minds, decide to punish the Senate if we do not produce and so on.
Senator Cools: That is what is happening now.
Senator Bryden: One way in which that has happened is through the appointment for short periods of time of people who could help us very little. I do not know what the purpose of making no appointments now is, but I am sure that some mornings it looks like punishment to the people on the other side. The current Prime Minister refuses to appoint, except for one. That makes life very difficult for our colleagues on the other side and it also makes it difficult for us.
It would not be outside the realm of possibility that a prime minister could decide that the next 10 appointees will be octogenarians, and he has the right to do so. That cannot happen under our present system because senators are required to retire at age 75. This is one reason I am concerned about making any changes. Once changes are made, it will be difficult to do anything because of the Charter of Rights and Freedoms.
We are not feathering our own nests. This will not affect our tenure at all. We are grandfathered. Our interest is the defence of the institution and its role in our democratic Parliament.
Mr. King: On the prospect of punishment of one side or the other, I may be somewhat naive, but I believe that in the current system where the Governor General appoints on the advice of the Prime Minister, a certain degree of accountability flows directly to the Prime Minister.
If a person were able to make a case that the appointment process had been manipulated to the overall detriment that everybody in this country has come to respect as a fundamental national institution, I would think one could not do that without impunity. Repercussions would flow from that. My colleagues from both sides and I have noticed for the last couple of years, not necessarily sinister, that some prime ministers have appointed Canadians who have come to the Senate with a maximum term of four or five years.
Some Hon. Senators: Six months.
Mr. King: It is difficult for me to judge as to whether or not that is a good, bad or punitive thing. However, I do believe in some form collectively, the person who is ultimately responsible for making the recommendation, the appointments in our system, would have to accept some accountability for that. I think the impact would be easily seen and not secret at all.
Senator Cools: I wish to have a supplementary on that. The word "punishment'' is a strong word. Often, it does not reflect the reality. The Constitution Act says that the Governor General shall appoint senators, not "may''. There is no constitutional ground anywhere that can possibly justify the current Prime Minister not making recommendations to the Governor General for appointment.
I do not want to go down the road to punishment but it is simply not open to any one individual in government to basically arrest the proper functioning of an institution. I was supportive of the Prime Minister making recommendations in respect of the appointments because the first duty of the Prime Minister is to ensure that the two Houses can function very well and very ably. Once you go down that road, one gets into trouble.
The fact of the matter is the current disinclination to recommend appointments is not consistent with the Constitution. The Constitution is clear. It says that the appointments shall happen.
Mr. King: Senator, I read with a great deal of interest the testimony before the special committee and Professors Hogg and Monahan on this.
Senator Cools: So have I. I have read them.
Mr. King: I was persuaded by the argument on two fronts.
Senator Cools: I found their arguments unconvincing.
The Chairman: Honourable senators, we are now an hour over our time. Senator Milne was on the second round. Have you finished your questions?
Mr. King: No, I will leave it at this. If you have not had an opportunity to read in detail the two professors' testimony on this point, it is worthwhile reading.
Senator Joyal: For the information of Senator Hays, you stated that the increase of a Senate seat for Nunavut was, in your opinion, not a housekeeping issue. Well, in 1975, through section 91(1), the same one that the court considered housekeeping, the British North America Act was amended to increase the total number of senators from 102 to 104 and provided a provision in the Senate for the Yukon and the Northwest Territories. The increase of a small number of seats in the Senate was not deemed to be substantial by the court. These are amendments and readjustments of representation in the House of Commons mainly.
The court based its opinion on the scope of section 91(1) on the interpretation of the impact of those changes on the functioning of the institution.
The Chairman: Did they call it housekeeping?
Senator Joyal: Those are deemed housekeeping in the court's mind. When Mr. Newman used that term, he was just using the terms of the Supreme Court of Canada. That is just for the record.
Senator Hays: But it can be quite far reaching, in particular in the 1985 Representation Act.
Senator Joyal: My question is in relation to the interpretation of section 44. When we try to determine the scope of section 44, are we not bound by the preamble of the Constitution that the Senate is constituted in the Constitution? It must reflect the principle of the institutions that serve as a model for the British North America Act. The Supreme Court of Canada, as much as I have been able to understand, when they interpreted section 91 and its impact on the Senate changes, refer specifically to the preamble and the principle of a Constitution similar in principle to the one of the U.K.
It seems to me that, if we are to define the scope of section 44, it cannot be to a point where we give additional control to the Prime Minister over one of the two Houses of Parliament by making the terms renewable. The Prime Minister or any leader of the party, according to the Electoral Act presently, must sign, as you know for a candidate to run under the label of a party. This is a tool used to line up the MPs. I have been an MP and I have gone through that system. However, if I were here for eight years and it happened that I had voted against the government's will and amended bills and I was on the verge of being renewed. I would be very cautious in my own way to determine my independent judgment on a bill.
It seems to me that one of the major flaws of the bill is the renewable term in the practical matters of how the political system works. Parliament is the realm of political parties and, as you know, they function with very special interests. It seems to me that, by ignoring the practicality of how political parties function, you create a system which could alter fundamentally the checks and balances that must be maintained between the two Houses that is a constitutionally protected matter in the preamble of the Constitution.
I did not hear you on the preamble of the bill but that, to me, is a serious constitutional issue, too.
Mr. King: In fairness, the testimony before the special committee — and I believe this was reflected in the final report of the special committee — was quite full and frank on the whole issue of renewability. I thought that the final report of that committee set out the situation quite ably — namely, that it was a contentious issue throughout the hearings. Obviously, it is one of great importance not just to senators but to experts and other commentators who were called before the committee.
I am reminded, though, that the Prime Minister was clear in his presentation before the committee. He expressed a clear preference for renewability because, when he looked to the future, he saw an elected Senate. Renewability made sense. He clearly said that, should the committee choose an alternate route — that is, making these eight-year terms non-renewable — the government would more than consider an amendment of that nature.
With respect, senator, it is now for this committee to decide whether or not an explicit reference to non-renewability would meet the concerns of the committee along the lines of independence or any other corollary aspect.
The Chairman: Final question, Senator Cools, and then we will have a break.
Senator Cools: Section 44 is something I want to address. I want to go at the judges but I do not have enough time; it is more complex. I have reviewed a lot of case work on the judges as well.
You say the scope of section 44 of the Constitution Act, 1982, permits the Houses, the Parliament of Canada, to make these changes.
Senator Joyal and a few other senators a few moments ago spoke very ably, saying that section 44 will permit changes to the Senate and the House of Commons, but not changes that speak to the Parliament of Canada. In other words, it could be used to create an additional senator, as when the Northern senators came years ago, and so on.
You argue that this can be extended, although you qualify your own argument by saying that it can be used to bring an eight-year term but not a one-year term. My argument would be, if it can be used for eight years, it could be used for seven, six and one year.
I would like you to tell me — to the extent that the proposals before us in Bill S-4 are drastically altering the powers of Her Majesty in respect of making appointments — what sort of dialogue the Privy Council has undertaken with Her Majesty on this matter. It is Her Majesty's Privy Council.
Mr. Newman: Her Majesty's Privy Council of Canada are the ministers of the Privy Council that form the cabinet. The appointing power, of course, resides in the Governor General. The Governor General appoints in the Queen's name. The power is with the Governor General. That is about as far as I can take it constitutionally.
Section 44, on its face, of course, says Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive, the government or the Senate and the House of Commons. This is not an amendment in relation to Parliament. This is not an amendment in relation to the executive or the government. It is an amendment in relation to the Senate.
Senator Cools: That is a declaration you have made, but you have not proven that to me. The amendments you are proposing are fundamentally altering the Parliament of Canada and also fundamentally altering the Royal prerogative of Her Majesty. You say it is the Governor General. Yes, we know it is the Governor General, but the BNA Act says that all executive power is vested in Her Majesty. This is no mere ornament. This is the state of the law.
I would submit to you as well that the proposed changes in Bill S-4 are a profound change to the kinds of appointments Her Majesty would be able to make in respect of the Senate of Canada. It is a profound change, and it touches her powers. I would have thought that, before you undertook this course, there would have been some sort of dialogue either with Her Majesty or with her representative. You must remember that some of these matters to do with the Senate touch directly on Her Majesty herself — for example, the divisional senators. The additional eight still pass through Her Majesty. I would have thought these concerns would have been canvassed.
The Chairman: Mr. King, were they canvassed?
Mr. King: No.
Senator Cools: It is an interesting day where we reach a stage when Her Majesty's role is ignored. One wonders, "Well, maybe that is where Canada is.''
The Chairman: On behalf of the committee, thank you very much for coming here today. I apologize for having started late, but the Senate did not adjourn until 4:00 today. I thank you for staying as long as you have and for responding directly and candidly to difficult questions. It has been useful to our committee and a wonderful way to begin with evidence from PCO and Justice to help lay the foundation on behalf of the government side on how you would like to see this bill interpreted and applied.
I would now like to welcome to our committee our second and third panels, consisting of Andrew Heard, Associate Professor of Political Science for Simon Fraser University. Mr. Heard has appeared on a number of occasions before this committee and we look forward to hearing his views again tonight.
Appearing from the Canada West Foundation is the president and CEO, Roger Gibbins, who will no doubt enlighten committee members with respect to his perspectives on this bill.
We also welcome Joseph Magnet, Professor of Law at the University of Ottawa. Mr. Magnet has written extensively on issues pertaining to constitutional law and we look forward to hearing his opinions.
We would like each of you to make your presentation. Following that, I will open the floor to honourable senators for questions.
Andrew Heard, Associate Professor, Department of Political Science, Simon Fraser University, as an individual: Thank you for the opportunity to come and talk to the committee about this issue.
I will look at this subject from a couple of perspectives. Initially, I will touch on the constitutional issues. My views have changed somewhat since September, and I am less convinced now that the section 44 process has overturned and done away with section 91 issues and the Upper House Reference. I have more concern now than I once did, having had a chance to reflect on it and read through the evidence of Professors Hogg, Monahan and so on.
I will proceed on the assumption that we want to approach this issue from what changes this bill would make to the Senate. Will it make any changes to the fundamental characteristics of the Senate?
On another note, should Bill S-4 be amended in order to improve its practical operation or to mitigate its constitutional weaknesses?
There are a number of issues I will be looking at — the end of mandatory retirement at the age of 75 for new limited- term senators; the impact of appointing limited-term senators into the work of the Senate in light of the informal seniority system that appears to be at work in the chamber; the impact of the bill on the independence of the Senate with respect to the voting record of senators; and the problems with renewable terms that are included in this bill.
I would be happy during the question period perhaps to provide more detail about my concerns concerning the constitutional process. For the moment, I will continue under the assumption that we need to be aware of the issue of fundamental characteristics as raised by the Supreme Court in its ruling on the authority of Parliament to amend or abolish the Senate.
The first issue I want to look at is the retirement age. Bill S-4 would abolish mandatory retirement at the age of 75 for any new senators appointed after that time. I have a concern about this issue, prompted essentially by a realization that this would undo what I think was a very useful amendment passed in 1965.
It is an unfortunate caricature of the Senate that it is a well-paid retirement home, and this was not helped by octogenarians and non-ogenarians and so on. I hasten to add that I have no concern about individual people appointed at a particular age, but we must pay attention to the general population statistics and how this plays on the work of the Senate.
I did a study of senators appointed since 1965 with the new retirement age of 75 brought in and, during that time, 275 senators were appointed, 92 are still in office and 102 died at the average age of 76.
The statistic that concerns me the most is that, since 1965, senators appointed to this house have died at an alarming rate, shall we say. Almost 23 per cent of senators have died before their end of term. There is not just a concern about the death rate, but there is a larger concern about the number of deaths — they are overworked. It is obviously a gruelling job. There is a larger consideration about how the chamber has to cope with this reality of people at an advanced age. It is not just the fact that people die at a much more frequent rate than M.P.s. In the same period, only 3 per cent of M.P.s have died, compared to 23 per cent of senators. It also has an impact on the Senate's work because of a number of senators being ill, having to take extended time off or perhaps not working as full hours as they would otherwise. Doing away with mandatory retirement would run the risk of further impacting the work of the Senate with these age-related issues. I see little reason to proceed with it, and I am concerned about the consequences of abolishing mandatory retirement.
The second issue I want to touch on briefly is how the work of the Senate might be impacted by having short-term senators brought in on a revolving basis, as it were. One thing I looked at was the extent to which some seniority system is at work within the Senate. If you turn to page three of my brief, you will see in Table 1 clear evidence of something I am sure you know, which is that new senators are only gradually integrated into the leadership positions of the Senate. Among those who have only had 0 to 4 years of service, 83 per cent have never held a particular position of leadership. By that, I mean an office that has some kind of stipendiary remuneration because of it. You will see a gradual increase right through to the twelfth year of service and beyond. There is a startling difference between senators in the early stages of their careers and senators in the later stages of their careers. I have a concern about bringing a series of shorter-term senators into this work because of the existing seniority system. It would take until the mid-next decade before shorter-term senators were in a majority within the Senate, but they still would be in a minority within leadership positions if this trend continues. I have a concern that the eight-year limited term for new senators would leave them on the margins of the work of this house for some period of time and they would not be fully integrated.
Also, I think the evidence of the seniority system is not just a case of waiting your time; it is also evidence of the need to acquire institutional experience and knowledge before you can be effective in these leadership positions. Once again, I have a concern that the eight-year term is too short for senators to gain enough experience and to be fully integrated into the work of the Senate.
Another aspect of this bill is whether it would change the fundamental character of how the Senate does its business. I am taking for the purposes of this discussion the relative degree of independence that senators have from their caucus leadership. There is a perception, at least, that, over time, senators have more freedom of personal action than individual M.P.s do. There has been little statistical or empirical work on this, so I did a study that covered the period of 2001 to 2005. I pick this up on page five of my briefing notes. I looked at 125 formal divisions involving 122 members of the Senate and 7,700 votes. This is only a fraction of the votes because, as you realize, many votes are settled on a voice vote, and those include a formal recorded vision but no idea of who was in fact dissenting from the vote. I took the record of votes where individual senators are recorded abstaining, voting for or against a bill, and I wanted to see how often they vote against their caucus position and how often they abstain. It was clear that there is a wide practice of independence among senators in a relative sense, certainly relative to the House of Commons.
If we turn to page six, Table 2, you will see a table that talks about the senators' rate of votes against their caucus, where they voted absolutely against. I was testing there the question of whether shorter-term senators are less inclined to vote independently than longer-term senators. Do you acquire more independence knowing you are here for a long time and acquire the kind of attitude of, "Well, I am here, I will vote as I please''? I was surprised that there is less of a difference than I expected between senators appointed at a time when their maximum term would have been eight years or less and those appointed at a time when their maximum term would have been more than eight years. There is, in fact, a small group of longer-term senators who very frequently vote against their caucus position, but there is still a significant number of shorter-term senators who vote against their position. When we add in their rate of abstention, we will find a very similar rate of dissent between shorter-term senators and longer-term senators.
In this respect, I was relieved, in a way, to see that the ethos of the chamber does pass from longer-serving senators to shorter-term senators. In this respect, I have less concern that it will impact the independence of senators because it seems apparent that those appointed to shorter terms do in fact vote relatively independently in much the same way as their longer-term colleagues do.
I do have a serious concern about the possibility of renewal terms. The possibility of a prime minister deciding which of the senators deserve to be reappointed to a new term seriously raises questions about the potential voting patterns of senators who wish to be reappointed. In this respect, I believe that renewable terms would have the potential to seriously impact the independence of senators voting.
To conclude, I recommend that Bill S-4 be amended in several ways. I suggest that mandatory retirement at age 75 should be retained for all senators. I argue that the length of term should be increased to 12 years rather than eight. I think this will allow the shorter-term senators to be brought fully into the work of the Senate, especially since it would be a gradual integration of new senators. I also strongly suggest that the terms should not be renewable.
Roger Gibbins, President and CEO, Canada West Foundation: Thank you for this opportunity. I do want to stress at the outset that I am not a legal scholar. I am a political scientist by training. However, I have been entangled with Senate reform debate for most of my 30-year career. It seems longer at times.
In the interests of time, I will abridge my prepared remarks. I will not go into the rationale for Senate reform. I will also apologize at the beginning for some rather blunt language. I do find that my patience runs a bit thin at times. The country has been spinning its wheels on this issue forever, it seems, and there are times when I would like to see some movement on this file before my death or before the death of my children. Quite frankly, I am often very pessimistic about either opportunity.
With that nice preamble, let me turn to Bill S-4 itself. My first comment has to do with the constitutionality of the bill. I will be brief here because it is not my field of expertise. I am convinced by Mr. Newman's testimony earlier today that Parliament does have the constitutional capacity to move forward on this. There will be constitutional objections, but I see these as more political arguments than legal arguments. There may be a determination to draw the provinces in as a way of blocking any progress on Senate reform. I think that is as understandable as it is regrettable.
Second, the most important thing about Bill S-4 is that it does show — I hope it shows, we will know in a year — that incremental Senate reform is possible. For years, Canadians have been told that although Senate reform may be desirable, it must be approached comprehensively rather than incrementally; that comprehensive reform required constitutional reform; that constitutional reform is impossible; and, therefore, that Senate reform is impossible. There is a nice circular argument that has been built up.
In short, the perfect has become the enemy of the good. We are told that any incremental reform, even the smallest step, is to be shunned in case we are pushed onto the slippery slope of constitutional reform.
This line of argument has allowed opponents of Senate reform to present themselves as supporters who reluctantly conclude that action is impossible. It is also a line of argument that flies in the face of the American experience and, indeed, in the face of our own experience in imposing a mandatory retirement age for senators.
I firmly believe the modest changes we make today will make it more likely that we will be able to generate the political will to confront more substantive changes tomorrow. If we begin by chipping away at the status quo, we will build the political dynamics that will enable us to carry the process forward.
Admittedly, Bill S-4 is a modest start. It does not create an elected Senate, although I think it does envision one. It does not change the regional distribution of seats or address the complex relationship between the Senate and the House. Nonetheless, it is an important start that should enjoy broad public support and should not antagonize provincial governments.
A quick word on the proposed eight-year term — this strikes me as appropriate. It is roughly congruent with the leadership cycle common to corporate, non-profit and academic experience, and it is likely to be congruent with the career paths of new Senate appointees. It provides time for coming up to speed but no time for coasting. I suspect, but only suspect, that the eight-year term will reinvigorate the Senate for the benefit of Canadians.
It was mentioned this afternoon that a useful ratio to keep in mind is that maybe members in the upper house should have three times the term of members of the lower House. In the audience this afternoon, I did a quick calculation from 1965, which was the first election I voted in. The average term of the House of Commons is 3.1 years. If we apply the factor of three, we have a term of nine years and three months for senators.
However, I must stress — in fact, I cannot overstate — my indifference to the choice of eight, nine or 10 years. Flip a coin; draw a number out of a hat. I do not see it as being particularly significant. Perhaps this has already been done. I do not think that Canadians will march in the streets demanding 10 years rather than eight years or set up barricades demanding nine rather than seven or whatever.
If Bill S-4 does get the ball rolling with respect to Senate reform, what might the next steps be? Here we confront a major problem because, in my view, we simply do not have an acceptable model of what a reformed Senate might look like. There are few models of any kind on the table and the dominant Triple-E model is both incomplete and shopworn. Too much of our intellectual energy has been devoted to blocking Senate reform and too little has been devoted to thinking through the basic design principles of a reformed Senate.
For example, although it is clear that a reformed Senate will be elected, we have not worked out the appropriate form of election. We have not worked out a formula for regional representation that captures the regional complexity of Canada and the large population variances among provinces. We have not worked out how to incorporate the territories into a reformed Senate, and we have not worked out non-territorial forms of representation that might enable the Senate to capture the country's changing demography and spatial distribution of its population. In short, we do not know where we are going.
You might argue that the prudent course would be to stop any action, including Bill S-4, until we figure out our destination. However, past experience shows that Canadians will not even begin to tackle these important questions until the Senate reform train leaves the station. If we do not build on the momentum that Bill S-4 creates, nothing will happen. There must be a stimulus for creative thought and this is what Bill S-4 provides.
This brings me to the conclusion and crux of my presentation, which is the role that the Senate of Canada should play in the reform debate that Bill S-4 has sparked. Simply put, there are two options.
First, the Senate can lead that debate by marshalling its vast experience and the creative energy of its members. Indeed, I would argue that there could not be a better focus for the reform debate than the Senate itself. Senators could and should be in the vanguard for changes that are coming just as surely as change is coming to the British House of Lords.
Second, the Senate can continue to fight a rearguard action against reform. If this defensive and ultimately futile strategy is adopted, then the reform debate will take place outside this chamber and you will be bystanders rather than creative agents in your own reform.
The choice is yours. How the Senate handles Bill S-4 will provide an important signal to Canadians as to your intentions. Thank you for this opportunity. I would be happy to answer any questions.
The Chairman: Thank you, Mr. Gibbins. Finally, Mr. Magnet, we would like to have your presentation.
Joseph Magnet, Professor, Faculty of Law, University of Ottawa, as an indivual: Thank you for inviting me here. It is always a pleasure and a privilege to come before you to try to be of assistance.
I am asked for my opinion as to the constitutional validity of Bill S-4. In particular, I am asked whether section 44 of the Constitution Act supports federal legislation which amends section 29 of the Constitution Act, 1867, to change the tenure of senators from age 75 to a fixed term of eight years.
In responding to your request for my advice, I asked myself: How would a court approach this question if a court were seized of it? I believe there were two basic inquiries upon which a court would embark.
First, a court would use the tested and true method of constitutional analysis referred to in so many of the Supreme Court of Canada precedents. The court would ask: What is the object and purpose, the pith and substance, the legal and practical effect of this amendment?
In answering this question, the court would examine the "travaux préparatoires'' of Bill S-4 — the debates, political and legal, as to the tenure of senators. The court would also examine the larger context in which these debates occur in trying to divine the purpose of this legislation.
Second, a court would inquire into the power given to Parliament at section 44. The court would examine whether section 44 is a wide or a narrow power. Does section 44 escape the confines of the old section 91(1) of the British North America Act? Does section 44 give Parliament new powers or does it substantially reproduce section 91(1), albeit with clarification on the four matters mentioned in sections 42(b) and (c) — basically powers of the Senate, methods of selecting the number of senators, allocation to the provinces and residence qualifications?
Let me now try to answer the question of constitutional validity, using these same methods that a court would use, because they are probably the methods that will ultimately be used to answer this question.
On its own, first addressing the object and purposes of Bill S-4, this legislation is a little inarticulate as to its object and purposes, its legal and practical effect. To some extent, the "whereas'' clauses provide some insight as to the purpose. The "whereas'' clauses refer to the democratic principle. They also try to provide some supports — may I say, perhaps a little self-servingly — to try to bring the Bill S-4 amendment into the understood permissible limits of the old section 91(1). In other words, the "whereas'' clauses say that the purpose is to preserve the essential characteristics of the Senate as a chamber of sober second thought. The "whereas'' clauses say that specifically. It is an interesting and helpful statement but it is not overriding. A court would notice it and decide that it was the duty of the court to learn of the background that gave rise to such a novel, piecemeal approach to Senate reform. A court would find very interesting the second "whereas'' clause that announces that the Government of Canada is exploring means to respond to the needs of Canada's regions, which is found in the text of Bill S-4. Senators know much better than I that this is the essential conundrum of Senate reform — regional representation. This is the problem. The large provinces now dominate; the smaller provinces, particularly in the West, want more representation; and the Maritimes are, perhaps, overrepresented. Any reform will create winners and losers. This is why Senate reform has proven to be such a difficult Gordian knot to untangle.
Of course, Bill S-4 does not address regional representation or the claims of the Western provinces, at least not directly. If it did so, it would be far beyond the confines of section 44 of the Constitution Act, 1982, and find itself directly in the teeth of section 42(c).
A court looking at this situation would want to know whether this piecemeal reform is being done because its ultimate purpose is to change regional representation. In other words, is this the first step on the road to dealing with the matters specified in section 42(c)? That is the essential question. In answering this question, a court would look at the second "whereas'' clause, which seems to suggest that Bill S-4 is part of a larger project. In the language of the second "whereas'' clause, Bill S-4 is designed to respond to the needs of Canada's regions.
The court would also look to the history of the Western provinces pressing their claim and my admired colleague, Mr. Gibbins, has been at the forefront of that. They want greater representation. The champion of that claim from the Western provinces was the precursor of the governing coalition — the Reform Party.
Certainly, a court would refer to Prime Minister Harper's eloquent appearance on December 7, 2006, before the committee. Prime Minister Harper then argued that the government's broader accountability and democratic legitimacy objectives cannot be met without some form of electoral process. In reflecting this, he declared:
As yet another step in fulfilling our commitment to make the Senate more effective and more democratic, the government, hopefully this fall, will introduce a bill in the House to create a process to choose elected senators.
This makes it clear that Bill S-4 is part of more to come. All of this will tempt a court to see Bill S-4 as part of an overall design with an object and purpose, a pith and substance to change, step by step, the regional representation — first, by changing tenure; second, by providing for election; and, as Prime Minister Harper said, lastly, by trying to create, probably through constitutional amendment, a change in provincial representation.
There is another important point. All senators here know well that the Senate has an absolute suspensive veto over the federal legislative process. This veto exists in constitutional law. Some people, perhaps including some in this room, think that the political niceties are such that the Senate, having this full power, cannot really use it — that the conventions of the Constitution are against the full exercise of the formal powers that the Senate has in constitutional law. Various reasons are given for that, such as lacking full democratic legitimacy and constitutional convention prohibits routine or full exercise of the Senate's powers. Of course, once elected, the Senate will have an absolute suspensive veto in constitutional law and it is probable that constitutional conventions will change to legitimize certain, or maybe all, uses of the Senate's power.
It is possible that a court noticing this would say that the intent of Bill S-4 is to bring about a change in the fundamental features and the essential characteristics given to the Senate as a means of ensuring regional representation in the federal legislative process. Those are the words of the Upper House Reference, and that cannot be done under section 44. I will explain why later.
This is at the level of constitutional convention but this is the real operating level in which the gears of formal constitutional power are meshed with operating political power. It could be a change of considerable significance. It is a change that a court might notice to overturn the purpose that it discerns in Bill S-4 because the purpose is the linchpin to constitutional validity.
The last point I want to make relates to the ambit of section 44 and whether this is a wide or narrow power. Some would say that, if these are the changes and this is the purpose, then section 44 authorizes it. In the Upper House Reference, the Supreme Court of Canada clarified that some forms of tenure change, including the 1965 amendment for mandatory retirement, did not change the fundamental character of the Senate and that this was constitutionally valid. The Supreme Court of Canada implied that other forms of tenure change would change the institution's fundamental character, and so it refused to answer the question about tenure that had been asked of it. It said, "no, we have to see first the exact changes proposed.'' The court observed that further reduction beyond mandatory retirement to replace life tenure could impair the functioning of the Senate as a chamber of sober second thought.
Senators have heard some testimony about section 44. Professor Peter Hogg came before the committee and testified. He said:
It seems to me that the best interpretation of what happened in 1982 was that it overtook the ruling in the Upper House Reference. In other words, the 1982 amending procedures now say explicitly which changes to the Senate cannot be accomplished unilaterally by the Parliament of Canada; they are the four matters in section 42 that I mentioned earlier. Other aspects of the Senate can be changed under section 44.
Mr. Hogg is a brilliant and admired constitutional scholar and a good friend of mine. His opinions are always deserving of great respect. I have considered his opinion on this matter carefully and I respectfully disagree with it. The whole idea of the patriation bill was to leave things as they were, except to patriate the Constitution, add the Charter of Rights and Freedoms and an amending formula. The patriation bill was specifically justified as not increasing the powers of Parliament. Section 31 of the Constitution Act, 1982, makes this intention plain. It says, "Nothing in this charter extends the legislative powers of Parliament.'' That intent carries by design to section 44 in which, although not in the Charter, the marginal notes make clear that nothing changes.
The upshot of this is that section 44 is no larger in scope than the old section 91(1). Section 44, in my respectful opinion, cannot support legislation that would change the fundamental features or the essential character of the Senate. Contrary to some of the opinions senators have heard, it is my advice that, if a court sees in Bill S-4 the first step in changing these fundamental features, section 44 will not necessarily support it. Section 44 does not give Parliament increased powers to change the essential characteristics of the Senate except for the four matters mentioned in section 42(b) and (c).
In conclusion, I believe there is a real risk that Bill S-4 will not survive constitutional scrutiny. I do not say it will not survive. I simply say there is a real risk that it will not survive, and I cannot be more precise than that.
I hope these comments are helpful to the committee. They are delivered along with my thanks for the invitation and the privilege of allowing me to attempt to be of assistance to you.
The Chairman: Thank you for a stimulating and challenging presentation.
Senator Milne: I will start with Mr. Heard because you and I agree on what most of this bill is attempting to do.
If this bill passes without extending the term beyond eight years and we have a number of eight-year term senators incrementally being appointed to the Senate, your tables would show us that many of them would retire before they ever got into leadership positions in the Senate. Am I correct?
Mr. Heard: Certainly in the first few years.
Senator Milne: That is right. This is an incremental change. If anyone is expecting immediate and marvellous changes in the Senate, it will not happen. It simply will not happen.
Do you think that a 12-year term would produce senators who would move into leadership positions more quickly?
Mr. Heard: I do not believe a 12-year term would move them into leadership positions more quickly, but it would allow them to move into leadership positions, certainly in the first wave of new senators. I think it reflects the reality of the chamber that it requires a certain amount of time, not just in the chamber, but also dealing with these issues. One of the advantages of a longer term is that there are people sitting at the table who were here 10 years ago rather than four or five years ago.
Senator Milne: That fits right in with my experience of the Senate: It takes five years to find out what is really going on around here. There is a culture to this place. There is an unspoken hierarchy here and it does take a long time to find out exactly what is going on and how the place operates. That is one of the reasons why I have a great deal of difficulty with this eight-year term.
Mr. Gibbins, you stated that your views on Senate reform have been around for 30 years and are well known. You said that you view Bill S-4 as a transitional mechanism and indicate it should be looked at in that way. Do you still feel that way now — that this is just the first step?
Mr. Gibbins: Yes I do, although I am deeply distressed by my colleague's comments because he suggests if it is viewed in that way by the courts, the court will terminate the Senate reform discussion.
Senator Milne: You are leading into my next question.
Mr. Gibbins: That will have negative impacts on the country as a whole. I am quite distressed by my colleague.
Senator Milne: One of the problems I have with this step-by-step approach is that the last step that occurred in changing tenure of senators, and any kind of reform of the Senate whatsoever, was in 1965. That is over 40 years ago.
If Bill S-4 passes, and it is really just the first step of a process, we could be stuck with it for a very long time. As Senator Fraser pointed out before the last panel, I believe it is designed as a first step of a long process. It is not designed to rule our lives for a very long time; it is a short-term bill. I have a great deal of difficulty with that.
I come back again and again to the eight-year term in this bill. It was pointed out by one of our senators before the last panel that constituency returning officers now have a tenure of 10 years. What possible rationale could there be for a returning officer in one particular riding or constituency to have longer tenure than a senator who is actually concerned with governing this country and with deliberating the laws that will rule the lives of all Canadians?
Mr. Gibbins: You raise an extremely important point in my mind. We, or you, must look at what happens if Bill S-4 is not only the first step but also the last step. If we wait another 40 years — and none of us will be here to witness that — for the second step, have we damaged the Senate in the meantime? Have we left it a less effective house?
I am not as convinced as you that having an eight-year term, maybe a renewable term — I am ambivalent on that — would fatally damage the Senate and we would be in a worse spot than if that was the only step we took. Considering the legislation, it is an appropriate question to ask: Is this the first step, or if it is the last step, where does that leave us?
In regard to the comparison in terms of the chief returning officers and the senators, I am not convinced by the parallel. A simple response would be to say that maybe we got it wrong with the returning officers, although the idea was to provide a degree of political independence. That is important. Political independence, in my view, is not characteristic of the Senate in the same way it should be characteristic of returning officers. The Senate is a far more partisan establishment than the electoral returning officers are — at least I like to think so.
Senator Milne: Theoretically, yes.
Mr. Magnet, I found it interesting as you went through the pith and substance of this particular bill. The fact that you disagree with Mr. Hogg is encouraging. You feel that courts really would see this as Mr. Gibbins sees it — namely, as the first step in the process to actually change the fundamental nature of the Senate. Therefore, it would be considered unconstitutional.
Mr. Magnet: I think there is a real risk of that. I may say, with all due modesty, that Mr. Hogg actually, in his book, seems to disagree with himself.
Senator Bryden: I was going to quote that to you.
Mr. Magnet: He put it this way in his book, in the loose-leaf edition, at section 4.7(b):
Section 44 replaces section 99(1) of the Constitution Act, 1867, section 91(1) conferred on the federal government the power to amend the Constitution of Canada. That phrase was then undefined. It was given a very narrow meaning by the Supreme Court of Canada and was subject to important exceptions expressed in section 91(1) itself. The result is that the scope of section 44 is similar to the scope of the old 91(1).
That is his opinion in his book, which is considered reasonable.
The Chairman: And that is your opinion here tonight.
Mr. Magnet: And that is my opinion.
Senator Joyal: Mr. Heard, there is one important element that I think deserves consideration. I was very interested in your statistics. One that should be brought to our attention is the prospect of another career after a Senate mandate.
This, to me, is a very important element in the definition — I come back to Mr. Magnet — where it says:
AND WHEREAS Parliament wishes to maintain the essential characteristics of the Senate within Canada's parliamentary democracy as a chamber of independent, sober second thought; . . .
One of the essential characteristics of the Senate is that, in practical terms of being appointed up to age 75, there are few cases where we see senators resigning to run in the House of Commons or to have another profession, for obvious reasons. The retirement age is 75. It happens sometimes. We have Senator Fortier, who has already announced that he is there only in passing. We had Senator Boudreau some seven years ago or so. That is the exception and not the rule.
If you look to the House of Commons, the prospect of a career is built in the electoral process. I was elected at a young age and left the House of Commons when I was 39. Of course, I had another career.
In the Senate, it is more or less the end of my professional activities. That, to a point, has an influence on the way I perform as a senator. I am not counting on running for the House of Commons at age 75 — maybe, but I would probably be the exception in the history of Canada. We have never seen that.
To me, the prospect of a career is an important element of the independent nature of the institution. The fact that I am not counting on something else sees to it that I do not have to serve another ambition. At the moment you limit the term, the political party cannot resist the opportunities that would be open to them to appoint senators at an age where, after eight years, they would be ripe to go back to the House of Commons, so that the Senate could become a training school for future M.P.s. The system is based on ambition. We cannot deny it. The political course is on ambition, which is the drive of the system.
To me, when we discuss the term, that element is fundamental. It is rarely mentioned. In fact, I rarely hear about it because, according to the presentation of the bill, it was to bring new ideas into the Senate, modernize the institution, and create a kind of rolling. The perception was there will be a rolling, as if the turnover in the Senate presently is not quick enough and you see too many senators staying too long.
As Mr. Magnet would say, the pith and substance of this bill would create movement in the institution. It is too stable. It seems to me that, at the moment we want to create that, we are triggering a different "model.'' We are not working within the parameters of the present institution.
It seems to me that, when we are defining a term, we have to take that seriously into consideration.
Mr. Heard: You have touched on an important issue. I know it has been discussed at debates in the main chamber itself. It goes back to how the Senate was created, what it was intended to do, and what it does today.
My view of the Senate is it is there to provide that sober second thought, the reflection that comes from a relative independence of mind and a wealth of experience. The Senate has been treated as a career-capping position and, for the most part, it should be. The value of the Senate is people who come late in their career, who have done many different things in different walks of life.
I am less optimistic than Mr. Gibbins that an eight-year term would, in fact, encourage more people to come into the Senate. I think it would encourage older people to come into the Senate. With an eight-year term, there are few 50- year-olds or mid- or late 50-year-olds who want to come in. It would end many careers. What do you do at the end of your sixties when that is the end of your career?
I am in favour of a longer term because of the Senate's role of providing a pool of experienced people to give a second consideration to public policy. I have a concern that shorter terms will go against that and, to the extent it does create turnover, it will have more people with less experience and will encourage people to come to it later in life rather than earlier.
Senator Joyal: Mr. Gibbins, if I listen to you well, you are tired of the political manoeuvring that there might be around this bill. Would it not be wiser for the government to just refer it to the Supreme Court and, after six to eight months or a year at most, we would get a final decision and we can move on?
If the government is so convinced — as you and Mr. Newman have said and the other gentlemen we have heard from this afternoon who are so sure — about the constitutionality of the bill that they think they can test the muster of the Supreme Court reference on the basis of Mr. Hogg's statement, should they not go directly to the court and say that is the end of it because it is touching the legislative process and we cannot change something fundamental in the legislative process and find out a year down the road that we have done something unconstitutional? That would probably be much more serious as a result than waiting eight or 10 months for the Supreme Court to come forward with a decision.
Mr. Gibbins: I am still reeling somewhat from Mr. Magnet's comments because he raised concerns in my mind about the constitutionality that were not there earlier in the day. He made the argument, quite persuasively, that if the court sees this as the first step, it would likely strike it down. At least, that is the bottom line that I read.
If that message sinks in and if it stands up, and it sounded pretty persuasive today, then going to the Supreme Court reference may make sense. More fundamentally, it is an invitation to the Supreme Court to shut the process down.
I am caught here. I am not sure what to do because I always believed that some element of Senate reform is necessary to strengthen the ties that Canadians have to their national Parliament, and to have this debate simply shut down and not have another government touch it for another generation or two would have adverse consequences for the country.
I am torn on this. I would say that the test you have heard this evening has introduced more serious questions in my mind about the constitutionality of what we are doing, and I find that deeply depressing, but also somewhat convincing.
Senator Joyal: We can just bury the issue in the sand and say that we presume it is constitutional, so let us pass it. However, anyone can go to the court tomorrow. Mr. Magnet can go, or I can go to the court as a senator who has an interest and say that this changed something fundamental and that I strongly believe it is unconstitutional. Sooner or later, if there is a serious doubt about this legislation, about the scope of section 44, which is essentially what we are talking about, it will be tested in the court.
As you say, would it not be wiser to devise a reform that would meet the muster of what the court stated in the Senate reference; in other words, Parliament can change the term for senators, but should we not change the term in a way that would meet the test of the court? Then, of course, we would start the ball rolling without gutting the process forever. In my view, this is a serious option that we should consider instead of rushing this bill along and pretending it is constitutional while, in fact the bill, as it is now, has some issues.
Today, I was puzzled by the witnesses from the Privy Council Office and the Department of Justice. They said to us, "The government is open. If you do not like eight years, change it; if you do not like a renewable term, change it.'' Normally, government officers come here and say, "Everything is fine; everything is certified. This is constitutional.'' If in their opinion there is some doubt, why do we not come forward with a substantial bill that would eliminate that doubt? I am always skeptical when officers of the Department of Justice come to me and say, "If you do not like that clause of the bill, change it.'' Normally, they fight tooth and nail for each and every word and comma.
The Chairman: The officers did not say that. It was the Prime Minister when he appeared in person before the special committee.
Senator Joyal: I know, but they were inviting us to reopen the bill. I find that there is a difficulty in this respect. To meet your concern, should we not go that way?
Mr. Gibbins: I do not want to put words into my colleague's mouth, but he has introduced a question that may preclude your option as well as the Bill S-4 option. If I understand the argument, it is that if any bill is conceived to be a step in a process that ultimately has some larger objective, then it gets kicked into the amending process which includes the provinces.
The logic of his argument is that Parliament — the House of Commons or the Senate — is incapable of acting because any action will be seen as a first step toward something. I interpret his argument to mean that questions of Senate reform are really removed from parliamentary consideration and can only be considered through the constitutional amendment process, which means they go to the provinces and the Senate is essentially bypassed, as is the House of Commons in most respects. I think that is the logic, which I find deeply depressing. To use a cliché, the horse is already out of the barn. We have a government that says they see this as a first step. You cannot pull that back. You cannot strip that away from a new bill. I think we have put ourselves in a very uncomfortable box.
Senator Bryden: When the bill was first introduced, the Leader of the Government in the Senate stated that it represented an important first step toward larger reform of the Senate. I was reminded of a quote by another senator that is found in Protecting Canadian Democracy. Senator Michael Pitfield, for six years Clerk of the Privy Council and for 20 years a member of the Senate, states:
In constitution-making it is important to bear in mind that the first step in reform is almost never the final step. To the contrary, the first step sets off a process of evolution usually quite rapid at first and gradually petering out. Focusing merely on the change and not on its consequences as far as the eye can see is to invite mistakes and chaos.
As well as listening to the evidence that has been given, we have to consider if this first step is legitimate under our Constitution. Other first steps could probably be taken instead of this one. Why would we take one that will not end up being constitutional, or do we just take a shot?
Mr. Gibbins, I know you are interested in getting something done, anything done. Basically, it does not matter what it is; let us get something done about Senate reform. To quote you, "It's an argument I've always been hesitant to go public with.'' This is from an interview with John Geddes of Maclean's magazine. "But the only way you end up with more comprehensive reform is if you destabilize the status quo to the point where Canadians say, `This is a mess, and we've got to sort it out.''
I do not know whether you are just destabilizing it or radicalizing it. I do not mind doing that. I have stirred up a lot of that stuff myself from time to time. However, I would like to think we had some chance of this in fact being an acceptable first step. I believe we have had indications from the present government in other situations that indicated it is better to say and do something — even though we know we cannot succeed or that the courts will turn it down — than that we not do it. Everyone knew we could not get the gun control bill through the House but it still went on. Even denying that there would be use of the notwithstanding clause, they maintained they could change the position on same-sex marriage.
I do not want to be part of setting our feet on a road comparable to this. I would rather take a little bit of time and get some indication that we really are on the right road.
What Mr. Gibbins has said today may be depressing, and perhaps it is a surprise to hear the reasoning that Mr. Magnet used to come to quite a different conclusion than what you have come to, but he is not alone. There are people here who would support that — independently, I have not even met him — and there are others. We have some coming tomorrow and there were some here today.
Are you still of the view that it is better to do something, anything, in relation to the Senate than nothing, even though it appears that it may not be valid?
Mr. Gibbins: I will give a quick response to a difficult question. I am deeply conflicted on this point. I would like a situation where we, as Canadians, were taking the first step and we had a sense of what the next steps would be, a sense of where we were going and an idea of what a reformed Senate might look like in the long term.
That is what I would love to do. However, I still believe that if we cannot set that process in motion, if we cannot find a first step, we will never get into that debate. For example, I believe if Bill S-4 collapses, if it is found unconstitutional or whatever, the organization that I head would never give another thought to questions of Senate reform because it would seem pointless to do so.
I am torn. I feel irresponsible to say that we should embark on something, even though we have no idea where we are going, but I am troubled with the alternative which, to my mind, is to do nothing. If we could find a mechanism to stimulate creative thought about what those steps might be, if we had that ability and commitment, I think that would provide a way out. I am stuck; I am deeply torn by this.
Senator Bryden: I appreciate that, and I could participate in a discussion as to how we might get another start.
In your brief and in other places you have said that your own thinking on Senate reform has evolved over the years as has the reason it is necessary. I believe that one of your principal arguments for keeping a good, healthy reformed Senate is that it has become the only check and balance on the powers of the Prime Minister and the rest of the executive. Is that correct?
Mr. Gibbins: It is certainly an important check, yes.
Senator Bryden: I believe, although others who are more expert than I have given evidence on this, that Bill S-4 weakens the Senate's position and puts far more power in the hands of the Prime Minister who is currently floating the idea of an elected Senate. We may eventually have an elected Senate, but it will take a long time and it will have to be done by the front door because the provinces will not let it sneak in by the back door. We already have a huge number of vacancies in the Senate, comparatively. Yukon currently has no representative in our chamber.
If the ability to elect senators does not come quickly, the Prime Minister, having tried, may proceed to appoint senators for eight-year renewable terms to fill the holes because he has a duty.
Members of the House of Commons are not a check on the executive because their political futures depend on doing the will of the government if they are on the government side and of their leadership if they are on the opposition side.
The independence of the Senate is dependent upon its ability to veto legislation without fear or favour. We have used that ability and will probably use it again. We certainly amend bills and send them back to be fixed. If the Senate loses its strength because the prime-minister-of-the-day has the same control over senators appointed for eight-year terms as he or she has over members of the House of Commons who are elected for set terms, then there is no check or balance and we really will become a democratic dictatorship.
I would like to hear whether the witnesses agree with that.
Mr. Magnet: I am here to give my advice on constitutional validity and I do not think I can add to the eloquent remarks that you have made, Senator Bryden.
Mr. Heard: I believe that eight-year renewable terms, taken as a package, are a problem. It is perhaps more the renewability than the eight-year terms. If the current culture of the Senate were to continue, senators appointed for eight years would be as independent as they are now. From voting records it can be seen that there is a fair degree of independence of senators appointed for eight years or less.
I worry that that would be undermined by the change in the rules by preventing renewability and the carrot of having to appear to be someone whom the Prime Minister would like to renew. That would undermine the independence.
I believe the short term of eight years would weaken the function of the Senate of providing investigation on policy issues and legislative revisions, but I do not think the eight years undermines independence per se.
Senator Bryden: There is a significant difference between an eight-year term appointment and one until the age of 75. From the day I was appointed to the Senate until I reach the age of 75, I am totally independent as far as job security and so on. I think statistics will show that that changes the numbers. Independence does not happen when you finish your term at age 75; it happens on day one. After only four or five years here, I voted against the Prime Minister who appointed me.
Mr. Gibbins: I believe it is perfectly legitimate, and probably recommended, that this committee look at Bill S-4 as the only step, not as the first step. You must then ask: If it is the only step, does it leave the Senate weakened as an institution? I believe that is a legitimate question.
The Chairman: There is already a bill in the House of Commons that deals with a form of an election, so this is not just the first step.
Senator Andreychuk: Mr. Magnet, I found your testimony troubling but not in the way that Mr. Gibbons did. You seemed to look at the preamble and then at the act, and then you looked at what might be coming in a package of acts. I am trying to make this non-legal. It seems to me that an act stands alone. The interpretation laws say you look at the body of the act and is it constitutional or not? If you cannot draw a definitive decision from that, then you look at the preamble and at other factors.
Are you saying that in reading the sections of the act you came to the conclusion that it is unconstitutional or not? Where is the risk? Every act has a risk because it is subject to a judicial interpretation. That may mean, if the judges feel that they cannot decide definitively within the body of the act they will look to the preamble and to the environment, to the Debates of the Senate and the House of Commons, and to all other factors to assist them in the interpretation.
I am not as threatened by that. I say this because every government announces a policy, a national strategy on health, or children or women. They will announce a series of acts that they will implement to deliver that public policy. One could say that Bill S-4 is the first of 12 more acts, which will lead to the ultimate conclusion the government wants. We left every government in a position that it rarely finishes its agenda and those acts stand alone, and particularly in criminal law. Many agendas have been put out where a government says it will tackle A, B, C or D in drug strategy or in sentencing, and the fact that the first one is done and the others are not does not make the first act fail. Therefore, I do not understand why you feel that other Senate, democratic or parliamentary reforms down the line might threaten the constitutionality and validity of Bill S-4. I find that troubling because that is not how I was taught law; that is not how it was interpreted in the courts and all of a sudden I am hit with this uniqueness. What is so unique about this as opposed to all those other initiatives?
Mr. Magnet: There are a couple of points to make about this. One looks within the four corners of an act, then to its preamble and then outside to interpret the meaning of the act is correct as a matter of statutory construction. It is not correct, however, as a matter of constitutional characterization to test the constitutional validity of an act. That is a different matter. The way to test the constitutional validity of an act is to look at the constitutional background to discern its object and purpose, its pith and substance, its legal and practical effects. All the constitutional precedents say this. The grand constitutional precedents set it out and then follow it. This is the first thing. It is not the same as interpreting a criminal law statute.
Second, various senators have interjected on this. The proposition as to this being the first step of things to come is not a general proposition of constitutional interpretation. In other words, it is Bill S-4 that is on the table. What is the characterization of Bill S-4? The constitutional litigator — I have litigated a couple hundred constitutional cases — will first say: What is the evidence and what will I prove in court when I challenge this thing? To come here to try and give advice to you, I ask myself that question. What is the evidence with Bill S-4? What has been said about it? That is not a general proposition. Of course, there is a record before the committees. The Prime Minister has come and given evidence. There is a bill in the House. Is it really true that a court, looking at the evidence a litigator will produce, will say it is not the first step? I suppose that is a question that you must ask yourself. If the evidence supports that it is not the first step — that it is a stand-alone and things may or may not come — of course that affects the constitutional characterization.
I look at the record and I have no brief with me on Bill S-4. My friend has spent a long time on his presentation. I have simply come here to give my advice to the senators on the committee. I have no opinion about Bill S-4 as to its wisdom or whether or not it should happen. I am simply saying: How will you determine the question you asked me? I believe a court would look at the evidence.
Here, as Senator Joyal said correctly, it is already on the record. What the Prime Minister has said is already on the record. Mr. Gibbins is troubled by it because it is on the record that it is the first step. It would be difficult as a matter of evidence in a court of law to overcome that as a matter of constitutional characterization.
That, to me, poses a risk. I do not say — and I think my friend may have troubled himself more than needed — that the bill is unconstitutional. I do not say that. I say that here is the method and here is the way it will work. I hope it is of assistance to you to see that a court adjudicating this could conclude that there is a substantial, palpable risk the bill would fail the test of constitutional characterization. The test then must fit itself; it must be characterized as a section 44 matter. On the second step, I have already expressed myself. Section 44 seems to be a much narrower window to squeeze this thing into than what perhaps some have said.
Senator, I hope that is of some assistance to you.
Senator Andreychuk: That is helpful but I am back to the bill in the other House. It may fail; it may not see the light of day. This bill has merit for a lot of reasons in my opinion. One is that it could be part of some other democratic reform. I am not assuming that there will be other democratic reforms. I am looking at it and asking whether this bill has merit on its own. I am looking at it from that way. You have reassured me that you are not saying it fails because there are other democratic reforms. You are saying that may be one of the risks, but it may pass the constitutional test as a stand-alone because we do not know what Parliament or the government will do. We know what they are intending to do but whether it is a deliverable is a different thing.
Mr. Magnet: The linchpin of constitutional validity is the purpose of the bill. That is the linchpin. In looking for the purpose of the bill, it is difficult to escape going into these other matters since the proponents of the bill have associated these other matters, whether successful or not, as part of the purpose. The purpose is the linchpin of constitutional validity. If that purpose is in Bill S-4, even if none of these things come down the pipe, or if they come down the pipe and are unsuccessful, that does not affect the fact that the purpose is in Bill S-4. It is the purpose of Bill S-4 that determines its constitutional validity and that must be decided on the evidence.
Senator Andreychuk: Are you characterizing the purpose of the act as more than regenerating the Senate?
Mr. Magnet: I am saying, what is available to a litigator who wants to take a run at Bill S-4? What evidence is available? Of course, the evidence is just all over these hearings. A litigator would assemble all of this to say here is the purpose. The Prime Minister said the purpose is ultimately to break this institution up and ultimately to affect regional representation. An opposing litigator will say there is nothing about regional representation in Bill S-4; it is just tenure and that is the debate. Within that debate, I have said there is a real risk a court will say where this debate comes from — where the history of all of this is, where the precursors of the governing coalition come from — is ultimately regional representation. It is not about the length of tenure; it is ultimately about that. There is the risk. A court may decide differently. Some judges might say they will just look the other way. Bill S-4 is okay. There is the risk.
Senator Andreychuk: You are presuming that regional representation is somehow destroying the Senate. I take the opposite point of view, but that is for another debate.
Mr. Magnet: I am not expressing any views as to the wisdom of changing the Senate. I am not competent there. My friend Mr. Gibbins is much more competent in that regard.
Senator Andreychuk: Perhaps I can ask Mr. Heard and others this next question.
There has been much stressing that we have a valuable collective memory here. I do not underestimate how valuable that is, but that is not the only reason we have a Senate that marks differently than the House. That second sober thought has collective memory. We have spent much time talking about collective memory but, at the same time, we have been talking about representing Canadians in the Senate in a way our House has not been able to do. We have stressed about bringing women in, about bringing in new ideas and new Canadians who do not have a wealth of experience in our political system.
In fact, we have sometimes commented about newness. Some are refreshing because they come here with no political experience yet with their own capabilities. We look at their strengths. We do not classify "the wealth of their experiences.''
It seems that we have overstated in this debate the collective memory rather than representing minorities, women and newer and fresher ideas. That brings me to the point of eight years.
Eight years can allow for many new and varied ideas from a diverse society. We have been dwelling on the idea that you can come here and stay until you are old. It may be possible for someone to make a career choice in providing public service and move on.
With that, I want to refer to your statistics. You say that when you are first appointed, you do not seem to go up in leadership and seniority. Have you factored in that, if you know you are coming in at the age of 50 and you will be there until the age of 75, you have time on your hands? Therefore, why would you fight your colleagues who say they were there first? Is seniority not built into all jobs, where you defer to the person who was there before you?
Have you taken into account that, because we are here for a longer period of time, there is not that sort of career appetite to move? In other words, we defer because our time will come.
Mr. Heard: There are a variety of factors at work. I am sure that is one of them.
However, looking at the age of senators coming in, they have become older over the last 10 or 20 years. There are many senators entering in their mid- to late 60s, and they do not have the length of term to say they will be here 15 years from now. There are a variety of factors at play.
I do not think one can argue that senators are taking a back seat because they are coming in younger and that older senators come in hungrier for leadership. That depends on the personality.
I want to return to your first question about the newness and freshness and the accumulation of institutional memory. There are a number of issues there.
Institutional memory is separate from the pool of experience. Institutional memory is thinking about how the chamber works. What is the business of it? That is important.
The other aspect of it is the professional and personal experience they are bringing to the job. I do not associate the need to go younger to appoint women or First Nations people or any other group. I think the Senate as an appointed body is remarkable in the degree of representation it has. However, I do not accept the argument that freshness only comes by appointing younger people, which I take to be the implication of your question.
Senator Andreychuk: No. I was trying to rebut the belief, to be honest, that people have all this wealth of experience and they come in and contribute something to this institution because they are older and mature. I was making the case that you might have something to contribute to this country by not having that experience or by being of a different generation.
Mr. Heard: Yes.
Senator Andreychuk: When we are looking at legislation and, in particular, on something like youth justice, when you are at the age of 60 remembering what you were like at the age of 18, it might be refreshing to have someone at the age of 40 who is closer to the decade you are trying to help.
Mr. Heard: You have put your finger on something that is important. The freshness comes from the contrast. What would be this chamber's approach, culture and ability if that was the norm? It would be a very different chamber if people were appointed in their thirties and forties. It is not the kind of chamber that I think should be playing the role it is intending to play in this system.
There is freshness from having younger people from different backgrounds, but I do not think a whole chamber composed of that is what we necessarily want to see.
Senator Andreychuk: Nor is it a chamber we would necessarily get as a result.
Mr. Heard: That is right.
Senator Andreychuk: In your statistics, you mention how there is a degree of independence at the time of voting.
Did you take into account abstentions or people being out of the chamber, which is another very important fact, voting for or against? Did you weigh that against whether the senator was in the majority and that majority was on the government side or otherwise?
In other words, I think it is easier to vote against your own party if it will not be significant because you are part of the overwhelming group. Therefore, your absence is not as fundamentally important in the sense of bringing down the legislation or putting through an amendment.
I think of legislation when I came in that failed or passed by one vote critically different than the way I am looking at life now, being one of 22 and staring at a formidable opposition.
I do not know whether you factored in where the senator sits in relation to the majority or minority, whether we are close or far apart.
Mr. Heard: To look at the independence of voting against the caucus position does vary over time in the circumstances and the size of the party.
It is clear that in this period, 2001 to 2005, the Liberal caucus had a much higher rate of dissent than the Conservative caucus. That can be attributed to a number of factors, the first being size. It is easier to rebel when there are more to carry the day. In a smaller caucus, the votes count more.
There can also be a culture within the differing caucuses. It could be the Liberals have a more independent spirit as a culture, and it may be how they relate to the elected caucus, which may be different from the way Conservative members relate to their elected members of the caucus.
Part of the period I studied was during the leadership succession in the Liberal Party. Some of the division of votes may possibly be put down to the internal party politics of the Liberal Party. There are a range of factors that go toward that.
My basic point is that senators, regardless, for whatever reason, still dissent more frequently than members of the House of Commons.
Senator Andreychuk: We have sat on this committee for a long time and have often said that the government has come in here — and Senator Joyal will remember — and said take it or leave it.
I find it rather refreshing that we have the opportunity to look at this bill and exchange with the government the opportunity to provide our input into the bill. I take that as a positive rather than anything else. It seems to worry you. It does not worry me. It gives me an opportunity I have not had granted to me often.
Senator Joyal: It is a draft in progress.
Senator Fraser: The hour grows late. We have kept you late and we will keep you here a bit later.
Having said that, I had an opportunity on the special committee to have a go
at
Messrs. Heard and Gibbins so I will not do it again, although your testimony was
at least as interesting this time as it was then. However, I have not had a
chance to have a go at you, Mr. Magnet.
I would agree, not just because we have been told this, but in the inherent nature of this bill it is obviously the first step in what is envisaged as a process of moving to an elected Senate. In my view, it only makes sense in terms of an elected Senate. Eight-year renewable terms are perfectly logical in the electoral system. I side with those who say that they are dubious for an appointed chamber. I was interested to hear your final legal reasoning giving pith and substance to my instinctive reactions, which are not those of a lawyer.
Therefore, it seem to me we must look at this bill as Mr. Gibbins suggested — namely, in terms of whether or not it will be good for the Senate even if no other change is made. My sense is that we will be with whatever we do for a good while yet — not necessarily 40 years, Mr. Gibbins, but for a while — because we will not get an elected Senate without very, very, very, complicated negotiations.
Parliament was able in 1965 under section 91(1) to change the tenure of senators, so presumably Parliament is still able to change the tenure of appointed senators. My question would then be: What could we do to this bill to diminish that real risk of which you spoke? I have asked many people what is the crossover point at which things are or are not constitutionally acceptable. For example, if we were to amend this bill to call for 15-year, non-renewable terms, do you think that would fall into the area of less risk in front of the Supreme Court of Canada, or would we still be in the risky zone? Do you follow me?
Mr. Magnet: Yes, I do. I think the constitutional background is there and that does not change. The change to 15 years would still be seen against that constitutional background. If the change to 15 years was convincingly shown to change the tenure from —
Senator Fraser: Forty-five.
Mr. Magnet: To age 75, to 15-year terms, because it was desirable, that obviously would reduce the risk. You would still have constitutional counsel saying, "Oh, no. Look at this exchange between Senator Fraser and Professor Magnet. Look at what they are trying to do.'' You would still have that and, of course, the constitutional background is, to a certain extent, set.
The interesting way to see if this works is to make clear what is possibly already part of the government's intention. I, of course, am not privy to that but possibly the government is thinking that, after things have been destabilized by eight-year terms and then destabilized more by elections, the playing field will be ripe and people will say, "We really must deal with this,'' or "We will open the Constitution and we will deal with it.'' It seems to me this possibly is the plan, and possibly it will work.
If this became part of the constitutional record of what is happening, if the government were to say: "We do plan to have a constitutional amendment at some point but this is not constitutional. We are simply doing what the Supreme Court of Canada said we could do which is to play around with tenure. We have our own ideas about playing around with elections. We will do that, too. We do not know what will come out of all this. That will certainly release some political energy and, if that energy is like it was before when Ontario was prepared to give up some seats, we will take a real run at opening the Constitution and amending it to deal with these grievances in the West. We know there are some sensitivities in Quebec but these have been managed before and we hope it can be done again. We are committed to opening the Constitution.'' That stands on its own as destabilizing precursors but they are not part of opening the Constitution. I think that may fail. There would be a risk. A litigator would have some more ammunition. It is not the first step of a constitutional amendment. The constitutional amendment will happen, the litigator will be able to say to a court, with evidence at a time and choosing when the debate is right for a constitutional amendment, and the amendment will stand or fall on its own. These are destabilizing amendments, and they have merit or demerit of their own because the existing situation, the federal legislative power, in our opinion, is not healthy.
This is the argument. A court could consider it. Possibly it would get through. There is still a risk it would not get through. I do not say there is hiding, but if there is hiding to intend to open the Constitution, does it reduce the risk? It may. It certainly gives the litigator a little more ammunition to go to court with. I hope that is helpful.
Senator Fraser: Thank you. It is very helpful.
Should anyone be foolish enough to consult my end of this debate, let me say for the record, as I have said before, that I have for many years been in favour of term limits but the point is where to draw the line. My problem with the rest of the government's plan is the nature of the election process. I think the bill as presented is hopeless, and whether one can or should do that without cutting what you referred to as the Gordian knot of regional representation is not easy, as we have recently witnessed in the chamber.
Senator Hays: Mr. Magnet, I listened carefully. I probably did not fully understand your argument, even though I have a background as a lawyer. You are saying that the court would use, as they did in the reference, the purposive approach to interpreting what is before them as a question, and that Bill S-4 really is more than a section 44 amendment. It is also one that comes under section 42 and 42(c), but you probably meant 42(1)(b), which is the provision of the Constitution where the provisions of section 38 must be met to make an amendment if you change the method of selecting senators. Is that the one you meant in your presentation? In the other one, paragraph (c), are the numbers by which the provinces are entitled to be represented.
Mr. Magnet: I was referring to paragraphs (b) and (c), senator.
Senator Hays: All right. Bill S-4, excluding the preamble, is more than it is in the operative sections of the bill, and that "more'' is a step that brings us directly into a section 42 amendment that requires meeting the test in 38 before it can be dealt with.
I have several points to make. The best evidence of that is Bill C-43 in the House, which is to have a form of consultative advisory process. The word "election'' does not appear. It probably will not get anywhere, but it is highly questionable as to whether or not it would pass the constitutional test in that it is doing indirectly what it cannot do directly.
The court might well take that into consideration. Bill S-4 may be a step in the mind of the government-of-the-day but it will not go anywhere because the next step will fail. Do you think the court might go that far?
Mr. Magnet: I definitely agree, senator, with the observation that Bill C-43 and Bill S-4 will be looked at together by a court. This idea of a consultative machinery is not new. This body has been exposed to it before with the Alberta situation.
It is interesting. After the failure of Charlottetown, amendments to the Constitution were effected at the administrative level. In other words, the use of the federal veto was made subject to an act of Parliament. Other administrative adjustments were done to bypass the Constitution. This is the intent of Bill C-43.
I am not pronouncing on Bill C-43, but I listened with great interest to your comments. I do agree that Bill C-43 would be seen together as part of this. What is the government trying to do? It is trying to break the log-jam in the Senate, to ultimately change it and deal with the grievances. What are the grievances? They are no secret. They involve regional representation.
Looking at it that way is where the risk comes from. I do agree that the two would be looked at together. I hope that responds to the question being asked.
Senator Hays: It does but I have a second question. Saying that probably helps me understand better a question we touched on in the special committee, and that is whether it would be possible for a government to take the Senate out of the reform process by packaging tenure and so on in a constitutional amendment that clearly falls under section 42.
From what I have heard you say, your argument basically is that section 44 is really section 42 anyway if it is packaged with election, and so that would be possible. That is the other likely way in which reform might come about.
My own view on the best way for reform to come about is to convince my colleagues, who are not listening, that the Senate should engage. Maybe it is just because I am from Roger Gibbins's country, Canadians, whenever I have looked at their opinions, favour a different kind of Senate from the one we have. We could engage. Senator Andreychuk has brought it forward nicely. We could put forward an extensive package that probably would pass muster.
The other question is on Bill S-4 itself, assuming it was not troubled by Bill C-43. As Sigmund Freud said, sometimes a cigar is just a cigar. If Bill S-4 was not troubled by these other elements, do you have a view on whether or not that would be a section 44 amendment, assuming the government had not come before the committee and given all these facts that tend to support your argument?
Mr. Magnet: I have not studied the question of whether or not a change of tenure from age 75 to a fixed term would fall within what the Supreme Court was anxious about in the Upper House Reference. The Supreme Court said: We are not going to answer this question about tenure until you show it to us. We do not have a problem with introducing mandatory retirement to replace life tenure. That is okay; but it is implied that there are some other changes that we would have a problem with, so we will not answer that question until you show us exactly what you want to do.
If you were to show the Supreme Court Bill S-4 and there was no constitutional record, which is, to my mind, unimaginable, because there is a lengthy series of grievances, I honestly have not studied that. I would have to go back and think that through. In other words, I would ask myself what the purpose is here. That seems to make sense. Now it becomes like an American Senate in a parliamentary democracy. Why is this happening? As long as I was convinced that the purpose was not ultimately to get at regional representation, I would have an interesting study. I do not think I can give a considered opinion at the moment.
Senator Hays: I will not go on. My own view is that an eight-year renewable term is not a good idea. I am on the record, as many of us are, that a longer non-renewable term might be a good idea. In fact, I think it would be a good idea, but it would not be an eight-year renewable term for the reasons that have been well expressed.
Mr. Magnet: I thank you for sharing that thought with me. May I also say that I am not here carrying a brief for one form or another of Senate reform. I am simply a humble constitutional lawyer trying to do a workmanlike job giving constitutional advice.
Senator Hays: I am trying to understand as best I can in a very interesting context how one would achieve this important objective for Canadians of having a Senate that they seem to want. This takes me to my next question.
Mr. Gibbons commented that we should not be setting off on a journey when we do not know where we are going. That is a good point. For instance, if Bill S-4 did pass, even if it passed in a better form, we still do not know where we are going. Even if Bill C-43 passed, and especially if it passed, then we would not have addressed the issue which for many of us is at the heart of regional representation, and that is the under-representation of certain regions in the Senate.
I would ask for your comment on that in terms of a piecemeal approach, and in terms of how strongly you feel about knowing where we are going before we embark on the journey so that the steps can be planned which will lead towards that ultimate objective, as opposed to not knowing unless, as Senator Bryden said, creative destruction is the way we should go. That is an economic principle, I know.
The Chairman: Pitfield chaos.
Mr. Gibbins: I would love to find an opportunity to inspire that national discussion about where we might be going. I do believe, however, that we need a trigger. Maybe it is the House bill; maybe it is Bill S-4. Without a trigger, we will not get there. That is why I have argued for this kind of creative destruction, or whatever it is, as a way of destabilizing the status quo to the point where we are prepared or forced to address more fundamental structural questions.
If we could get there some other way, that would be my preference. My reading of our constitutional history is that we will not unless it is forced upon us.
Senator Hays: My last question is to Mr. Gibbins. The Blair government has had a strong political will to reform the Lords. It follows on the 1911-1949 reforms which addressed the powers of the Lords as have conventions that have developed in the Westminster Parliament. They are not dealing with a legislative body that has the power of the Canadian Senate, which is unique among parliamentary bodies of the genre in which we find ourselves — in other words Westminster-style parliaments. The trigger there was a Royal Commission chaired by Lord Wakeham and quoted extensively by my friends, as well as Senator Joyal. He said something like 16 white papers over the course of this period have been helpful in better understanding what is at issue.
Do you think that would be a good idea?
Mr. Gibbins: The Royal Commissions that have been successful and I believe we have had some including the Bilingual and Bicultural Commission and others, have been successful because there is an underlying sense, at least among the political class, that we were facing a serious challenge to the political viability of the country. Even RCAP, or the Royal Commission on Aboriginal Peoples, had a sense of crisis although somewhat more low key. You need a trigger beyond the Royal Commission itself. The Royal Commission is a response but it is not enough.
I suspect that the most likely impetus to a fundamental examination of Senate reform would come through a partisan clash between a majority government in the House of Commons and a Senate majority led by another party on some fundamental act of government policy. That, to me, would be the democratic trigger that could then prompt the Royal Commission mechanism. We have to get there. If the Harper government today, for example, said we are going to have a Royal Commission on Senate reform, the response of most Canadians would be to say: What is the issue? What is the crisis?
I do not think we are at that point yet.
Senator Hays: Mr. Heard, I have a simple question on the upper age limit. You have expressed concern about doing away with the 75-year end of term. What about the 30-year threshold that you must meet to be in the Senate? In the House of Commons, all you have to be is old enough to vote. Do you have a view on that?
Mr. Heard: I do not have a view one way or the other in the sense that very young MPs have been the exception. There have been a number younger than 30 but very few. It would be unusual for someone to enter the Senate younger than 30. I do not see that as having been an actual barrier for participation or to the Senate's detriment. I do not have a concern about the 30-year threshold that needs to be met.
Senator Hays: I have used up my time. Thank you all. It has been fascinating.
The Chairman: I have a question for Mr. Magnet. It relates to what you call the linchpin or the purpose of the bill. It follows on questions from Senators Andreychuk and Hays.
I was a trial lawyer for 36 years and when I look at Bill S-4, based on the evidence that you gave us today, if I had to prepare a brief to take to the Supreme Court, I would follow the formula you have suggested by looking at the pith and substance. I would look at the objects and the purpose and so on, and then I would go back to the preamble and look at some of the points and pick out some of the words in the preamble based upon what the Supreme Court has said in previous cases such as the Upper House Reference. In that reference as you know, they used phrases like essential characteristics. Is this amendment going to change the essential characteristics of the Senate of Canada and its fundamental features? I would look at the preamble and I would see the whereas clause 1. They talk about evolving. I would look at number 6 and what language do I see in number 6: "The Parliament of Canada wishes to maintain the essential characteristics.''
In other words, the drafters of this bill have carefully used the exact language of the Supreme Court so that it is tied to it. It seems to me that one of the arguments I would make is to use this argument to say: This is constitutional because it meets the standards and the tests actually given by the Supreme Court of Canada itself. That would be one of my arguments.
My question is: What would you think of that, constitutionally, as one of the arguments I would make before the court as to its constitutionality?
Mr. Magnet: Judges tend to be pretty smart people. Of course, the declaration in the whereas clauses reproducing the exact language of the Upper House Reference would get respect from a court, no question. The court does not regard what the Senate and the House of Commons do with suspicion. It regards it with respect and with deference.
In Morgentaler 1993, after the Supreme Court had invalidated the Criminal Code prohibitions on abortion, Nova Scotia was concerned. Dr. Morgentaler said he wanted to open a free-standing abortion clinic. Nova Scotia enacted a statute with the purpose to preserve a single-payer high-quality health care system for all Nova Scotians. Hospitals, under section 92 of the Constitution Act, are an exclusive provincial responsibility. Nova Scotia said a designated list of procedures — knee surgery, colonoscopy, nuclear medicine and abortion — all had to be performed in a hospital and this was to preserve a single, publicly accessible system for the hospitals. This was said in the text of the bill. The Supreme Court said that is interesting but, looking at the legislative record, the constitutional history, the background, and the statements of members in the House and in the media, it is clear that what is really bothering them is Morgentaler coming into the province to open a free-standing clinic. Notwithstanding the fact that they say the purpose is to preserve the essential characteristics of the Senate and to evolve and to do all this other presumably constitutional stuff, the Supreme Court is able to look behind that at the constitutional record. Not only is it able but it has a duty to look behind the constitutional record, to discern what is its duty. This is the purpose of the legislation.
You ask this interesting question that has been live in the constitutional cases for some time. It is a nice thing for the drafters to try to doll up the legislation so that it looks better than it might be without that and it will get some respect, no question. A good trial lawyer as yourself would refer to it and still the evidence would be available, and I believe the risk would be there as well.
Senator Joyal: I have one question for Mr. Magnet. You referred in your answers previously to Senator Oliver and other senators about the constitutional origin of section 44. You stated that it superseded section 91(1) of the Constitution under which the amendment of 1965 was introduced.
At the time of the drafting of section 44, I was the co-chair of the committee with former Senator Hays. I chaired the debate on section 44. We had before the committee the three most recent rulings of the Supreme Court relevant to the original patriation proposal — the Senate reference of 1980, the patriation reference and the veto reference. The Supreme Court had just established the context in which the federal government and the provinces could determine their path in the patriation avenue.
It was clear in the minds of everyone that section 44 superseding section 91(1) was not to give the Parliament of Canada more power than they were given in 91(1). What the Supreme Court said in the Senate reference was consolidated by section 42(b) and (c), which is the method of selection of senators, their powers and the number of senators for each province. The Supreme Court had clearly outlined one earlier that the Senate is a federal house, and that is the key issue of the Senate reference. The Senate is a federal house and it is not up to the Parliament of Canada alone to change it. You will recall that Bill C-60, which was the object of the Senate reference, changed everything in the Senate. It even changed the name of the Senate.
When the Supreme Court determined that the Senate is a federal house, it determined that essential characteristics pertained to that house. One of them, of course, was the regional feature of the house. I quote from the decision:
. . . the system of regional representation in the Senate was one of the essential features of that body when it was created. Without it, the fundamental character of the Senate as part of the Canadian federal scheme would be eliminated.
The important point is: In the absence of a factual context, it is not possible to say whether a change contemplated by this question would be in keeping with that fundamental character.
When we examine the constitutionality of Bill S-4 within the ambit of section 44 of the Constitution, 1982, there is no question that the Supreme Court would look to the constitutional history of section 44 and to the factual context to determine whether the change contemplated would alter the fundamental character of the Senate as a federal chamber to issue sober and independent second thought to proposed legislation.
This is the key to the issue of what the court would have to pronounce on. When you say that the bill stands alone, even if it is to be evaluated or understood as a stand-alone bill, it will be evaluated in the context of a federal house with a specific character, which is as a regional house with a built-in capacity to bring in, as the Supreme Court said, a house that is similar in principle to that of the House of Lords at the time the Senate of Canada was created. I quote from the Upper House Reference, "The Act contemplated a constitution similar in principle to that of the United Kingdom, where members of the House of Lords hold office for life.''
The court will review those parameters and evaluate Bill S-4 in that context — the specific parameters that have already been defined.
Mr. Magnet: May I say, Senator Joyal, thank you for helping me to answer the perceptive question posed by Senator Oliver. I have nothing to add to your thoughtful comments and I agree with them. May I also say thank you for reminding me of that wonderful committee of which you were co-chair and the pleasure I had in appearing before it three times under your chairmanship. That was a wonderful experience, as is this one.
I believe that you and I have shared intellectually the constitutional method, and I believe that is what a court would do.
I might add a small footnote to your remarks in the sense that you are looking at the meaning of section 44. The meaning of section 44 is interesting. What I found to support the argument that section 44 reproduces section 91(1), except for the four matters mentioned in section 42(b) and (c), were the marginal notes to the proposed resolution, which seem to make clear that was the intention. I agree that section 44 has that narrow scope.
Otherwise, I do not think I can add to the senator's thoughtful remarks.
Senator Hays: I have a question on Senator Joyal's point about the preamble and the court's repetition in the Upper House Reference of a legislative body in the nature of the Parliament of Westminster, the House of Lords. Would it be the House of Lords of 1867 or would the court be bound to take into consideration the changes made 140 years later to the House of Lords?
Mr. Magnet: There is a principle of growth in the Constitution and on the basic institutional structure. Senator Joyal referred to the court's preoccupation with preserving the integrity of the federal juristic unit. That was the language in the Upper House Reference. The basic integrity of the federal juristic unit has to be maintained. If the United Kingdom wants to abolish the House of Lords, they have their own machinery for doing so and they do not have the constitutional limitations that Canada has. I do not think that would influence.
The challenge of our Constitution at every moment is to preserve its regional balance. This is the great challenge of governing this country because there are so many regional identities and they are strong. To preserve one federation, those regional identities must be respected and people must feel they are being respected, and I refer not to the province of Quebec only. The regional nature of the federal juristic unit — the balance in our federation — is crucial. The Supreme Court has always been sensitive to this, and any thoughtful court would be sensitive to this.
Tenure can be changed from life tenure to mandatory retirement. It can be changed in other ways that we have not yet seen. However, if tenure were changed to somehow change the regional balance of the federal juristic unit, then everyone on the courts, in a thoughtful way, would become concerned in the ways in which Senator Joyal has mentioned — a check on the government and a democratic deficit. As well, it would be concerned about the regional balance, which is the essence of our federation and what holds us together, and that must be preserved.
Mr. Heard: Some questions and comments have focused on the relationship of section 44 with the old section 91(1). I want to make some comments on my change of opinion on this. I was originally convinced by the argument forwarded by Messrs. Hogg, Monahan and Coe that section 44 should be taken as including a reaction to the Senate reference, and that there was a deliberate attempt to draw up a list of what exceptions Parliament had in amending the Senate in those four points.
I found that compelling if one just looked at the Senate, but it is not compelling if one looks at the other elements of section 44. Parliament has the power to amend the Constitution with respect to the House of Commons and the executive. If we look back at old section 91(1), Parliament could not extend the life of Parliament beyond five years, except in terms of insurrection and so on.
That is now not one of the exceptions to Parliament's power to deal with the House of Commons under section 44. The only exceptions with respect to the House of Commons are the senatorial floor and the principle of proportional representation. However, if we look at the Charter of Rights and Freedoms, section 3 now states:
Every citizen of Canada has the right to vote in an election of members of the House of Commons. . . .''
Section 4(1):
No House of Commons . . . shall continue for longer than five years. . . .
Section 50 in the old 1867 act said Parliament could not continue beyond five years.
If one were to take the argument literally that the only exceptions to the power in section 44 are those exceptions in sections 41 and 42, then Parliament would be free to amend any provision in the Constitution with respect to the House of Commons including, perhaps, the right to vote, and certainly the five-year limit in both the Charter and the 1867 act.
There is nothing special in it about the Charter in terms of the amending formula. It is not excluded or required to be amended in one fashion or another. If one took the argument that section 44 literally only has the exceptions applied in sections 41 and 42, then Parliament could do away with the five-year limit.
It could, in theory perhaps, do away with the right to vote and being candidates. No Supreme Court will accept that and that is precisely my point: They will read further context into the limits that are imposed in that literal reading of section 44.
Senator Andreychuk: We have been talking about regional representation. I go back to the bill. If you take away the right to renew — if we just had an eight-year, or 15-year, or whatever term — how does that affect the regional representation?
We have heard evidence on the renewability and the consequences of that, but just by saying that we had tenure for life, we then put age 75, and now we say it will be tenure for eight or 10 years, how does that change regional representation?
Mr. Magnet: Are you asking me that question?
Senator Andreychuk: Yes. You were tying tenure with regional representation.
Mr. Magnet: Senator Hays asked me a version of that and I tried to respond. He asked if you strip away all of the constitutional background and look at it on its own, would it survive? I replied that I had not thought about it. It was not the question I was asked to advise you on. I did say that I thought it was difficult to strip away the constitutional background because it is there; it is on the record and this committee is composed of realists and practical people.
You are asking me now, supposing we strip away the constitutional background, just on its own, it is a 10-year —
Senator Andreychuk: No, but take into account the constitutional background. All you are trying to do is, again, look at tenure, a limited term. We limited it to 75 and now we will limit it to something less than that — and do nothing else.
Mr. Magnet: Bill C-43 is withdrawn and the government makes a declaration that this is as far as we are going — is that what you mean?
Senator Andreychuk: No, you are still tying everything to the other statements. I am talking about the historical background — characteristics, constitutional and history.
Mr. Magnet: Let me try to respond. Seeing it as part of a constitutional record, which affects its characterization, I have already made my comments there — helpful to you or not. Let me see if I can address the point you were asking on it own.
On its own, a term limitation would raise some questions. I will have to be modest in my assessment but, on term limitations from age 75 to 10-year terms, the Senate is not elected; people are appointed for 10-year terms. It is turning over; governments are turning over; governments are appointing senators; the composition of the Senate is changing as these processes are going on. Would a court be impressed by the fact that, as these processes are going on in the Senate, it can offer checks on governments elected in one part of the country because the Senate appointments are strong in parties of the other stripe? As this thing turns over, does that somehow affect the balance the framers had wanted to put into the institution, and that has been part of the evolving attempt of the federation to maintain that balance? I think that would become the question.
We would all be reading the studies of scholars like Mr. Heard as to what happened and how did this really work out. Good trial lawyers like Senator Oliver would be consulting on what can I make out of that as these processes unfolded. That would then be the evidence and the question would have to be looked at in that way.
With all due modesty, I simply have not studied it from that point of view. There is a study to be done. In summary, I will simply say that it might pass constitutional muster. It is not clear to me, however.
The Supreme Court of Canada was clearly concerned about tenure. They said, "We do not want to answer that question. You show us what you want to do and then we will give you the answer. We do not have a problem with tenure for life down to 75, but we will not answer that question. That is a tough question.''
Honestly, in a way, this is what I am saying. I have a problem until I see all the effects and consult all the brilliant studies by the professors and see what sort of evidence there is.
The Chairman: Thank you very much for that.
Honourable senators, all good things must come to an end.
Senator Joyal: I just want to say that I did not speak to Mr. Magnet before he arrived.
Senator Andreychuk: You are getting a little worried, are you?
Senator Joyal: I have not seen him for a long time.
The Chairman: We have just had three fascinating presentations and, on behalf of the committee, I would like to say thank you. It has been stimulating and challenging and you made us think. As we leave here tonight, I am sure that none of us has our mind made up because you made a lot of interesting points. That is what good witnesses do. We appreciate that.
Honourable senators, that brings an end to this section but we must do a small bit of administrative business. I want to remind honourable senators that this committee will meet again tomorrow morning from 10:45 a.m. to 1 p.m. in this room for more witnesses on Bill S-4.
Honourable senators, we have before us a budget as well. You will see a summary of expenditures. The largest part of our budget is to pay for little salads and so on when we have long meetings. Would someone like to make a motion?
Senator Joyal: I so move.
The Chairman: We have a motion from Senator Joyal, seconded by Senator Bryden, that the proposed budget be adopted. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: The committee is adjourned.