Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence, March 28, 2007 - Afternoon meeting
OTTAWA, Wednesday, March 28, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-4, to amend the Constitution Act, 1867 (Senate tenure), met this day at 4:14 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, today we are continuing our study of Bill S-4, to amend the Constitution Act, 1867 (Senate tenure).
Bill S-4 contains a substantive clause that would amend section 29 of the Constitution Act. The amendment would replace the existing term of appointments for senators, which runs until retirement at age 75. The new term of appointment would be for eight years. Renewal is not precluded, so terms could be renewed. Appointments would continue to be made by the Prime Minister, as they are today.
This bill was introduced in the Senate on May 30, 2006. A special committee was created by the Senate on June 21, 2006, to study the subject matter of the bill along with other issues of Senate reform. That committee heard 26 witnesses, many of them recognized experts on issues of Senate reform. Among these witnesses was the Prime Minister of Canada himself, who appeared on September 7, 2006, and described this bill as proposing "a modest but positive reform'' for the Senate.
This committee begins its work with several notable advantages that are helping us to proceed expeditiously. We have been able to review the expert evidence given to the special committee, whose transcripts have been circulated to all honourable senators at my request. We have 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.
This bill has now been before the Senate for 115 possible sitting days, stretching over nearly 11 months. A great deal of useful work has been done in this time. This committee has decided to use that work rather than duplicate it, so, with the exception of a few individuals, we will rely on the evidence provided by experts before the special committee rather than hearing them all over again.
We relied on that evidence and other work that has been done to narrow the scope of our inquiry to two essential issues still outstanding. The first of these is the constitutionality of the bill itself: Can Parliament amend the Constitution to create Senate terms without involving the provinces? The second is the eight-year term: Are renewable eight-year terms the best available option for the Senate?
Today, honourable senators, we are delighted to have four distinguished Canadians appear before us as one panel. We will hear all four presentations and then revert to questions.
I welcome to our panel Professor Jennifer Smith, Chair of the Department of Political Science at Dalhousie University. Dr. Smith has served on two electoral boundaries commissions, both federally and provincially, and worked on constitutional matters during the Meech Lake and Charlottetown constitutional rounds. Dr. Smith teaches Canadian and American government and politics. She writes on election procedures, constitutional questions and federalism.
Professor Alexandra Dobrowolsky is Chair of the Department of Political Science at Saint Mary's University. She teaches Canadian and comparative politics and women and politics. She was also awarded the Jill Vickers Prize from the Canadian Political Science Association in 2006 for a paper she wrote entitled "Social Exclusion and Changes to Citizenship: Women and Children, Minorities and Migrants in Britain.''
Professor Emeritus Dr. Alan Cairns is considered to be one of the most influential Canadian social scientists of the contemporary era. He has written extensively on a wide range of topics in Canadian politics, from the electoral system and federalism, to constitutional and charter politics, to questions of Aboriginal citizenship. His most famous piece of writing on Canadian politics may be his 1971 article, "The Judicial Committee and Its Critics,'' which discusses judicial activism in Canada. It is often listed as one of the most cited academic documents regarding Canadian politics. Dr. Cairns has appeared numerous times before parliamentary committees, and we are delighted to have him here with us as well.
Dr. Richard Simeon is a Professor of Political Science and Law at the University of Toronto. Dr. Simeon's contributions to public service include Research Coordinator, Institutions of Federalism, with the Royal Commission on the Economic Union and Development Prospects for Canada; Vice-Chair of the Ontario Law Reform Commission; and adviser to Ontario governments on constitutional and intergovernmental matters. His research and writing has focused on Canadian politics and public policy, with a special emphasis on federalism, the Constitution and intergovernmental relations. More recently, he has explored broader issues in contemporary governance both in Canada and comparatively. His current work focuses on federalism, democracy and constitutionalism in divided societies.
I extend a warm welcome to all four of you. We look forward to hearing your presentations. I would like to begin with Dr. Jennifer Smith, who has to leave early.
Jennifer Smith, Chair, Department of Political Science, Dalhousie University: I appreciate the invitation to be here, and I am sorry I will have to leave at 5:15 because I have to catch a plane back to Halifax.
I have read the transcripts of the meetings that you have had, and I have learned a lot from them. I was not even sure there was any point in my coming today, because what could I add to this debate? The high quality of the debate is impressive. At any rate, I feel privileged to be here and to be a part of it and to add my two cents worth.
I did send some copies of the remarks I will make and I will try to move as quickly as I can.
I make the first two obvious points. The first is that the Senate was conceived largely as an upper house in a parliamentary system modeled after the British system; it was expected to act as a house of sober second thought and it does.
There was always a second function adverted to in the Confederation debates, namely, the federal function of representing regional and provincial interests. The interesting compromise of regional representation instead of equal provincial representation may weaken the federal function but it does not eliminate it.
Does the change to an eight-year appointment by the Prime Minister, renewable, engage the function of sober second thought? My answer is yes, it does, because it diminishes the independence of the appointee. Why? Because the appointee might want another crack at the wicket.
In his testimony, the Prime Minister dismissed the idea that renewability inhibits independence and said that partisanship is the key driver of behaviour. With respect, there are partisans and there are partisans. The recent committee chairs episode, at least as reported by the press, along with common sense, ought to put paid to his argument.
In his testimony, Mr. Newman suggested that there are different grades of independence. In fact, in the institutions of high politics, that is not so. Institutionally, independence on the part of appointed political figures is secured only by long tenure, non-renewability, difficulty of removal from office and safe salaries. The fact that there are limited-term officials whose positions are set out in great detail in statutes is neither here nor there.
Does the change to an eight-year appointment by the Prime Minister, renewable, engage the function of federal representation? Yes, because the appointee's independence is compromised by the prospect of the renewable appointment.
Because the eight-year, renewable appointment engages both the functions of sober second thought and federal representation, does it engage the character of the Senate as established at Confederation? Yes, it does, for the reasons already offered.
Do the changes proposed require a constitutional amendment under section 42(1)(b) on the powers of the Senate and the method of selecting senators? The answer depends on whether you think changing the functions of the Senate, in the way I have suggested, amounts to changing its power. If renewability affects negatively the exercise of sober second thought and federal representation, as I think it does, then it also implicates the power to do so.
If there is doubt on this score, an obvious option is to refer the proposed legislation to the Supreme Court of Canada to discover the answer.
On election, there are two things I can say. First, there is nothing in the bill about it, so it is impossible to deal intelligently with the proposed change in the light of nothing more than the current government's proclaimed intention to set up elections, even in the face of possible provincial opposition to them.
Second, the sponsors of the bill, including the Prime Minister, argue that it is an important precursor to the democratization of the Senate through the election of senators. They argue the falling-domino theory that once limited, but renewable, terms are in place, election is sure to follow. That is possible, particularly if the Prime Minister decides to appoint individuals who run and win in a Senate election event.
However, there is one nagging thought. Once a prime minister has been handed the opportunity to appoint senators for a limited, but renewable eight-year term, he might come to appreciate not only the opportunities of making these appointments to reward his supporters, but, as well, the effect of the renewability carrot.
I ask you, why would this encourage any prime minister to face down provincial opposition, on any number of grounds, to a proposal to appoint only senators who have been «elected»? Why would it encourage him to slog his way through the Canadian amending formula in order to get an amendment to elect senators? Arguably, this bill is not a step toward election. It could be a step back from election.
Alexandra Dobrowolsky, Chair, Department of Political Science, Saint Mary's University: I prepared a sheet summarizing my key points in response to the three questions you have asked us to consider, so I will expand on these points in the time I have today.
Bill S-4 is a seemingly incremental change; but, as you know, it is one that is part of a bolder move to clear a path for constitutional reform, with the intention of ultimately producing an elected Senate.
Whether this government can proceed, even at this early stage, without provincial involvement — let alone broader input from Aboriginal people, women, racial and ethnic minorities — is in question. While this bill may be consistent with formal constitutional amending procedures and may be legally enforceable, I believe it runs contrary to constitutional conventions and current practices of constitutional change. Put differently, while it may conform to legal norms, I do not believe it is legitimate politically.
As you know, a comparable amendment was instituted in 1965 when senators' retirement at age 75 was mandated; and that was done without provincial consent. However, this was the mid-1960s, not the late 2000s, and times, as well as constitutionally appropriate political processes, have changed. In the intervening years between 1965 and 2006, various developments, from Supreme Court reference cases to our constitutional experiences of the 1980s and 1990s, make the current government's actions more contested and contestable.
The Chairman: Excuse me for one moment. What you are saying in English is being translated and you are going too quickly. I will not cut you off, but please slow down.
Ms. Dobrowolsky: The 1981 Patriation Reference and, more directly applicable, 1980 Upper House Reference both decried unilateral action. The latter even called for the preservation of rights of minorities.
While the court here was alluding to provinces, given our contemporary context, we can also consider its broader implications vis-à-vis minorities, ranging from Aboriginal peoples and racial and ethnic minorities to majorities treated like minorities — for example, women. Overall, this 1980 Upper House Reference does cast doubt on the legitimacy of Parliament's proceeding unilaterally.
What is more, events of the 1980s and 1990s also suggest a preference for unanimity over unilateralism. For example, even though the Constitution Act, 1982, calls for a 7-50 approval for some changes to the Senate, this was upped under the Meech Lake Accord to include unanimous approval and echoed in the Charlottetown Agreement.
At the same time, so-called "Charter Canadians'' now have a stake in the Charter, and thus the Constitution is no longer just about federalism and governments. This was clearly apparent when women's groups, Aboriginal groups and other equality seekers challenged the closed-door executive federalist negotiations and outcome of the Quebec round culminating in the Meech Lake Accord. These and other equality seekers also helped to open up the consultation process to ordinary Canadians in the so-called Canada round that resulted in the Charlottetown Agreement.
Representatives of women's groups, for example, were quite influential in the constitutional conferences set up by Joe Clark prior to the Charlottetown Agreement, garnering public support and the support of some provincial governments for the idea of a 50/50 male/female Senate and broadening the meaning of equality when discussing a new Senate, which was embraced by the Calgary conference. The Charlottetown Agreement subsequently opened the door to a possible gender quota system, special measures to provide for equal representation of male and female persons. The main point here, however, relates to the need for wider consultation.
As one legal expert observed in relation to the defeat of the Charlottetown Agreement, "No amount of public consultation guarantees the success of proposals to amend the Constitution. However, it is probably safe to assume that an absence of public consultation does guarantee failure.'' It is also important to keep in mind that the Supreme Court, in the 1998 Quebec Succession Reference case, states that only federalism but also respect for individuals and minorities are part of Canada's defining features. This also underscores the need to open up the process not only to territorial input but also to non-territorial scrutiny. In short, legal precedent and constitutional norms and practices in recent decades suggest broader consultation is necessary. This should involve not only first ministers but also First Nations and other non-territorial actors.
Since the 1965 amendment there have been various recommendations to change the length of senators' tenure. I will not detail those because I am sure you have heard these recommendations before and you know them.
I will cut to the chase and express my view on the matter. As to the appropriateness of the length of tenure, the question should be asked whether a change fundamentally will alter the nature of the Senate as a whole. Conceivably, shorter terms can serve to reinvigorate the Senate. There is also the potential to have more diverse senators and representation of non-territorial, not just territorial, identities. However, this still depends upon a prime minister's agenda. If a prime minister chooses to appoint more women, more racial and ethnic minorities and Aboriginal people, then shorter terms can produce a different Senate. However, the opposite can also be the case. Recent experiences in relation to Prime Minister Harper's judicial appointments are revealing. Here, ideological conformity rather than diversity has been a prime concern. Senators are akin to judges in that they are appointed, not elected, and senators play a role akin to that of judicial review as the Senate acts as a watchdog over the House of Commons and the government. This oversight might be compromised with eight-year term appointments because there is conceivably more power concentrated in the hands of one prime minister. This opens the door to more partisanship, less independence and, thus, a Senate that plays less of a watchdog role. Moreover, with higher turnover, senators might lack institutional memory and this might detract from the Senate's key role of being the chamber of sober second thought.
Therefore, I would not be in favour of a term shorter than eight years. There is some basis to the argument that a longer term is desirable, that a nine-year or 10-year non-renewable term is preferable because, if renewable, individuals might operate strategically to ensure their renewal. Above all, the goal in my view is to achieve better representation for marginalized groups.
Finally, with respect to the regional question, obviously the principle of regional equality was established in 1867. The Confederation compromise came with the Senate's main function to be that of regional representation. While this is the historical antecedent, the Senate has not really worked this way in practice. If the Senate were fulfilling this function, we would not have the rise of regional parties like the Social Credit and, more recently, the Reform Party and Bloc Québécois. In addition, we would not see the rise of executive federalism and the formalization of meetings between first ministers with first ministers' conferences. Rather, over the last couple of decades, prime ministers have been factoring in other representational considerations such as gender, racial and ethnic minorities and Aboriginal peoples, making the Senate more representative in these respects than even the House of Commons. It is my view that since the Senate has not really worked effectively as a voice of the regions, any reforms to the Senate should focus on linguistic and other minorities and majorities like women, who are still woefully under-represented in the institutions of Canadian government.
In contemporary Canada, national interests factoring in not only regional but also minority and public interest are significant. More robust representation of diverse, non-territorial identities will foster the examination of issues of country-wide concern that go beyond jurisdictional boundaries — for example, social inequalities, the environment, et cetera. The goal, then, is to transcend partisan and purely regional concerns and to represent a diverse citizenry. By truly representing Canadians' voices, the Senate can be a public body in which the citizenry has confidence.
Richard Simeon, Visiting Professor of Canadian Studies, Harvard University: Thank you, Mr. Chairman. I appreciate the opportunity to appear before the committee today. I have not prepared or circulated a brief for this committee but I did appear before the previous special committee last September. I believe you have had an opportunity to look at the brief I prepared for that session.
As you have mentioned, the most pressing questions facing this committee are whether it is constitutional for Parliament to unilaterally amend the Constitution with respect to providing shorter terms of Senate tenure under the bill. I have some views on that but I will defer to the many constitutional lawyers who know much more than I do about constitutional amending procedures. My sense is that the bulk of the advice you have received indicates that this particular change we are talking about — not moving towards an advisory or an elected Senate or any other more fundamental change — likely can be done by Parliament acting alone.
The other question is the length of term, which I will certainly address. With your permission, I will say a few words about the general framework within which I think about Senate reform. Any consideration of reform must begin with some clear ideas about the role and purpose of the second chamber. Is it to be fully coequal with the House of Commons or is it to be a more specialized, limited body with a more limited but clearly defined set of roles? That is the way I think about it. I do not want to create a second chamber along the lines of the U.S. Senate as it relates to the House of Representatives.
What are these roles? Again, my colleagues have mentioned them. First is the tried and true role which the current Senate does best as the chamber of sober second thought able to give detailed consideration to many bills that an overburdened and highly partisan House of Commons is not able to do well. To perform this role we need a Senate in which party affiliation and party discipline play a much smaller role than they play in the House. It requires, as has been mentioned, a high degree of independence of senators from the governing party and cabinet.
Second, we want the Senate to pay more attention to the longer term beyond the next election, studying and holding hearings and exploring issues that are emerging on the national agenda in order to bring them to the attention of the country. The current Senate plays this role very well. The implication of that is that senators should have longer terms because it will give them a longer time horizon than typically elected MPs will have. Of course, how long is the very question.
Third, the Senate should be an institution that represents the regions and provinces — the standard role for second chambers in federal systems. We know that the current Senate, because of its method of appointment, does not play that role well. That might be its greatest failure. It seems to me that, in a country as divided on regional and linguistic lines as ours is, it is critical that we combine what I call "building out,'' which is empowering provinces, with "building in,'' which is making sure that those interests are all represented at the central level. If there is one important need for Canada, it is that we need more bridges between national and provincial politics. The Senate is an obvious place to look for that.
Those are the familiar roles and themes. I agree with my colleagues that a fourth role in contemporary Canada is to make the Senate more representative. Indeed, it is already more representative of some differences such as gender, ethnicity and so on. As we all know, especially with our first past the post system for electing members to the House of Commons, we have a great many representational deficits. My wife has given me a new phrase to use today: the electorally disadvantaged in Canada, who do not have a voice through our existing process. We should think of the Senate as a tool that we could use to alleviate that.
A well-designed elected Senate — and people have talked about proportional representation and single transferable votes — could help make the Senate more representative in these ways. However, I am a bit sceptical about whether we could actually design an effective electoral system to do that. That is why in my earlier presentation to the other committee I surprised myself by coming down in favour of appointment.
I have been all over the map on this. I have been for a Bundesrat Senate and I have been for an elected Senate. However, it seems to me that some of the goals we have been talking about, both the federal role and the representational role, might be achieved with an appointment mechanism not in the Prime Minister's hands but in, to use an example, provincial nomination commissions made up of representatives of the parties from that province in the national Parliament and in the provincial legislatures. You would get a federal and a provincial dimension there. That is my current thought as to what we should do about appointment.
Let me turn briefly to Bill S-4 itself, the section on eight-year renewable terms. First, I agree with those who argue that, standing alone, this is an incremental improvement that we should endorse. I agree that we have to look at all of these issues of appointment and tenure together, but this one can, at least for the moment, be hived off and looked at individually.
In itself it is a good idea. It will mean a Senate more attuned to changing values and policy preferences in a rapidly evolving society, which is a clear advance over tenure until age 75. At the same time, it seems to me an eight-year term is still enough to provide the somewhat longer time frame, enough to ensure sober second thought.
I understand that the U.K. is now talking about something like a 15-year term. I believe that currently France has the longest term for a second chamber with nine years. Fifteen years does not seem to be much of an advance over tenure until age 75, certainly not much of an improvement. I think the term does need to be well short of that.
What is the right length? Eight years, 10 years, 12 years? I do not think there is a definitive answer, but I do think there are serious problems with eight years. It suggests, absent any change in the appointment method, that a prime minister who is in office for two terms would have the ability to appoint the entire Senate.
It seems to me that we have to go long enough to put some check on that, which is why I would suggest nine or 10 years in length, something like that, making sure it spills over three election cycles. However, I do not think it should be as long as 15 years, where the disengagement of senators from the life of the country would be too great.
For the same reason, with respect to prime ministerial power, if we keep the current appointment method, then I would be strongly against renewability for the reasons I have mentioned. If we did go to some form of election, then it seems to me that the fear of being defeated is what brings about accountability and, therefore, I would be much more sympathetic to renewability if we went that route. As it stands, I am strongly against renewability.
In conclusion, I stress that we institutional designers know that each and every institutional reform has its pros and cons, and each and every one of them has all sorts of unanticipated consequences. I see this as just the beginning of a more extended dialogue about fundamental reform of the Senate, which I think is necessary but cannot be done quickly at all.
The Chairman: Thank you very much for your very thoughtful and most interesting and useful comments. You can be assured there will be many questions from honourable senators, particularly with respect to the tenure and the term. Finally, Dr. Cairns, we look forward to your views.
Alan Cairns, Professor Emeritus, University of British Columbia: Thank you, Mr. Chairman. I am a political scientist and not a law professor, and I am sure that as people appear before you, you will note that these disciplinary distinctions are very important.
I do not have a completed paper. I was brought into this only quite recently. Historically, I have not studied Senate issues with great care, so my observations may come possibly from a rather naive background.
I have read some of the earlier proceedings of the previous committee. Looking at them, I thought there were a number of questions that I could usefully address and they are different questions from those my three colleagues have commented upon.
I am intimidated by the short time period I have to discuss these comments, but I am reminded that Lincoln's Gettysburg Address had only about 300 words and it has gone down in history as one of the great orations of the 19th century, at least.
I had hoped to cover six subjects. I will reduce those to three. I will look at the three-stage process of Senate reform that I see unfolding. I will look at some of the complications that have arisen from the attempt to make a distinction between a consultative versus a regular election. Also, I will mention some weaknesses that I think are involved in the proposal to proceed via the proportional representation route, particularly in the transitional period. Assuming we have gone ahead with the first stage, we have new senators coming in on the eight-year term and other senators involved in the life term who are leaving.
Let me first look at the three-stage process. By the three-stage process, I simply mean that I understand that Bill S-4 is stage one. It deals with the limited term of senators, reducing it to eight years. The arguments are that this will bring in new viewpoints and that a more rapid turnover will make the Senate more attuned with elements in contemporary society.
Stage two is the consultative election proposal. The purpose there, seen from the perspective of its drafters, is to add a significant element of democratic legitimacy which they feel is lacking in the present Senate.
Stage three, the content of which we know virtually nothing about at the moment, I assume deals with representation, which requires formal amendment. Presumably, it would also try to update the electoral system from how it has survived from stage two, in which it would still be still an advisory set of recommendations to the Prime Minister.
The stages, as you will quickly understand, become progressively more difficult. Stage one is considered to be the easiest stage because, from the viewpoint of its drafters and from the viewpoint of most of those at the earlier committee, it does not involve constitutional amendment.
The fact that the stages get progressively more difficult has some serious consequences. It means that at any particular stage, we may never get to complete the next stage. In other words, we are more likely to get through stage one than stages one and two. We are more likely to get through stages one and two than to get through stages one, two and three.
This forces senators to make a very complicated judgment. They must decide, among other things, if stage one is an acceptable fallback position if stage two does not proceed because it gets defeated in one or the other House. There is, therefore, the complicated conundrum that it is intellectually possible to support stage one because you support it as a basis for succeeding with stage two but oppose it as a stand-alone provision.
The problem is that senators lack the choice simultaneously to oppose it as a stand-alone provision but to support it because they like stage one and stage two when they are bound together. Stage two obviously changes the role of the Prime Minister and changes the nature of those who get elected.
The report of the earlier committee argued that Bill S-4 is not linked to prospective advisory election legislation in a way that precludes its consideration as a stand-alone measure. However, the proceedings of the previous committee made it very clear that many witnesses argued that Bill S-4 by itself was unacceptable without an advisory election process.
As we decide how to vote on stage one, we have to ask ourselves whether we will have improved the system if there is no stage two implementation. By itself, I would argue that stage one not followed by some version of stage two has negative consequences because it would simply increase the power of the Prime Minister in the appointing process by the rapid turnover that he would have completely under his control for successive eight-year periods.
The difficulty with the bill you are considering is that it is stand-alone, that is, we are dealing with it separately, but it is also at the same time intimately linked to what is to follow. We have to ask whether we support it as it stands alone or whether we support it only because we support the larger process, whilst we simultaneously understand that the larger process may never be completed because each process gets progressively more difficult to pursue. I am going over this more rapidly than I would like, because it is a complicated point I am trying to make.
I would propose that senators consider the possibility, assuming that Bill S-4 passes, to have it lapse after five years unless it is kept alive by majority votes in both Houses, and I do that as someone who is not a parliamentary or constitutional expert in this matter. I propose that suggestion because it will allow those whose support at this time was conditional on the premise that stage two was to be implemented to withdraw their support five years from now if their conditions, that is, that some version of stage two would be put into effect, had not happened. We all know that, with the passage of time, complications develop when we go through processes spread over a number of years. There may be a different government by the time we get to stage two, which is also the case with stage three.
The three-stage process, in other words, makes it extremely difficult to interpret the meaning of support for Bill S-4. Some people might be supporting Bill S-4 because they appreciate it, like it and are in favour of it even if no other process is followed, and others might support the bill only because they see it as part of a larger sequence. They accept it as part of that sequence but would be unhappy if that larger sequence was not followed because it got defeated in the House or whatever.
I will quickly move to a second point on consultative versus regular election. The report of the previous committee discussed this. The key question appeared to be whether a consultative process would fetter the Prime Minister's choice. The Oxford English dictionary defines a fetter as a restraint or check or anything that confines, impedes, restricts or hinders in any way.
The purpose of the consultative process — the advisory process, it could alternatively be called — is to provide public advice about the relative virtues of competing candidates by means of an election process conventionally understood as separating winners and losers. This creates very serious dilemmas. If the Prime Minister's discretion is not fettered, election loses much of its justification, as does the process. There will, in other words, because this is the way we understand elections, be tremendous pressures on the Prime Minister to recommend the winners. If the Prime Minister recommends the winners automatically, then it seems to me by definition that his discretion is fettered. He lacks the freedom to roam that he would have prior to this process being put into effect.
The earlier report indicated that Professors Monahan and Hogg thought that if the process is viewed as creating a pool of candidates from which the winning candidate is selected, then this would not fetter the process sufficiently to justify a process of constitutional amendment under the 7-50 rule.
It seems to me that if we compare the position of the Prime Minister now to the position of the Prime Minister after such a process has been put into effect, his discretion, his possibility of choosing, is drastically fettered. Even assuming that it is just a pool of candidates, it is fettered in the sense that after a consultative election, any would-be senator who did not run, anyone in a larger population who, in the absence of such a process, might have been considered by the Prime Minister as a possible candidate, will not be considered because that individual did not appear throughout the election process and will therefore be politically ineligible, in practical, real terms, for appointment. In other words, this process means that many dozens of individuals who prior to the installation of a consultative process would have been clearly eligible are in fact excluded. That seems to me to be an obvious indication that the discretion of the Prime Minister is fettered.
What could be the purpose of having this process of election if it was not intended, to some significant extent, to fetter the Prime Minister's capacity of choosing those whom he nominates to the Governor General? The advisory election process, therefore, it seems to me, changes the method of selection and hence resort to the 7-50 procedure is absolutely necessary.
Let me quickly, since I am probably going beyond my allotted time, talk about some of the difficulties of proportional representation. I think I can sum this up in a very short moment or two.
The purpose of proportional representation, in this case and in many others, is to get more diversity in those who pass through the system. In this case, the idea is to avoid mirroring the House of Commons and that a different set of distribution of party supporters would be advantageous for the sober second thought and other functions. The problem of applying proportional representation to the issue of Senate reform is that serious problems occur, especially in the transition stage. Proportional representation requires multiple member constituencies, usually at least three to five. In a transition period while significant numbers of existing senators are still in place, the possibilities of proportional representation will be very limited. Hence, the virtues of proportional representation, meaning minority representation, a fairer allocation of seats and votes ratio, will be absent. In other words, proportional representation will not work. It will not be available as an election instrument in many of the cases when vacancies occur across the country until the change in membership, assuming that stage one has been gone through. It will not be available until that process of transfer in which existing senators retire and new senators appear is well advanced. For considerable periods of time, in some parts of the country, first past the post will continue to be necessary.
We could remind ourselves that proportional representation will not work in our three Northern territories where there is only one senator from each territory. A considerable wait will be required before we can institute its widespread use elsewhere. I would advocate that this committee undertake research on the electoral procedures that are possible in the transition period as existing senators are phased out and replaced by newly elected senators, because proportional representation will not be available for a considerable period of time. Although the bill now before the House of Commons presupposes that proportional representation is available, it simply is not.
The Chairman: Thank you very much. That is food for thought.
Professor Smith, I know you have to leave. You made comments on renewability and the short tenure. You were critical of both concepts. If the bill were amended so that there were longer, non-renewable terms, what would your position be then?
Ms. Smith: You had an excellent paper before you written by Andrew Heard, and he discussed the business of length of term. He used some indicators that had to do with trying to measure how long it takes for someone appointed to be integrated into the Senate's procedures and then be very active in committees and so on. I understood from reading his paper that he thought a 12-year term was suitable and allowed for a sufficient amount of time so that someone could take up an active role and make a good contribution to the Senate. I believe that Professor David Smith agreed with Professor Heard on that. I think that is roughly where I stand.
I think the eight-year term is too short for the reasons that Professor Simeon provided and for the reasons that Professor Heard provides in his paper. That is that point.
As you know, I strongly disapprove of the renewability feature of the bill. I feel that Senate reform is a multi-variant problem; it is not a single-factor problem. It cannot be dealt with by picking one variable, changing it and then expecting that somehow willy-nilly all good things will happen. That is not a good way to proceed.
You can also only deal with what you have. I do not think it is a good idea to make a change assuming that other things will happen that you have no control over and you are not sure will happen. Therefore, I look at renewability within the confines of Bill S-4, and, for the reasons I have given here, I believe it compromises the individual of the appointee. I believe it is absolutely a bad idea.
Senator Stratton: With respect to Professor Smith, we tried Meech Lake, and you must be familiar with that. I think all of us here lived with that, whereby it ended up with the provinces supplying a list of five names from which the Prime Minister could choose. That, of course, failed.
Then we tried Charlottetown, and we all lived through that. It dealt with the election of senators. Those attempts were fairly comprehensive, especially Charlottetown. Therefore, the country has tried twice and failed to do comprehensive change.
The attitude of the Prime Minister and the current government now is that you must try or attempt to accomplish this through incremental change, which I think you realize is indeed the case.
The problem I have with trying to go back and do a broad consultation with the provinces and the citizens of the country is that it is doomed to failure. As soon as you take that step you doom it to failure because it becomes a matter of how many seats there will be for each province. That whole argument fell apart during Charlottetown. Although Ontario gave in the end, the accord was killed largely in that province because of that argument.
If we cannot accomplish this through a broad overview in changing the entire system, which has twice been proven could not occur, would you not accept the fact that there should be a term? Let us try it with the first step of appointment to a definitive term. Do a compromise. If it will not be eight years, then what will it be? What should it be? That is what I would like to hear from you. If that first step is feasible, what should that term be? If you do not agree with renewing, fine, but should this first step be feasible?
Ms. Smith: I revert back to what I said initially in response to your question. I do think eight years is too short, and I think the points were made for the reason that those points are telling. I referred to the Heard paper, so I think you should be looking at something closer to 10 or 12 years.
Senator Stratton: Would you agree that an incremental step is feasible?
Ms. Smith: I would agree with an incremental step only if the argument can be made that it does not negatively engage the functions of the Senate as they were understood, the sober second thought and the federal function. If that argument holds water, then this change can be made.
I am not certain about whether it is constitutionally valid under section 44 for the Parliament of Canada to make this change. The reason I say that is simply because I can imagine the argument on the other side. I can imagine the argument that might be presented to a court and how they might come to the conclusion that an eight-year renewable term has enough of an impact on the functioning of the Senate that it gets to the power of the Senate and, therefore, you are arbitrarily changing what is, after all, a foundational institution of Confederation. That is like pulling a rug out from under the people of Canada. That is an issue.
Senator Stratton: If you cannot accept the eight years, what about 12 years?
Ms. Smith: Andrew Heard came forward with some empirical arguments for the 12-year term. That was better than any argument I heard when this thing was initially proposed.
Senator Stratton: Would you accept the 12 years, then?
Ms. Smith: I think an argument could be made that if it is non-renewable in 12 years it does not go to the diminishment of the function of sober second thought and would not go to the diminishment of the federal representation function.
Senator Milne: Before I begin, I point out that it is really not the fault of the witnesses that the government has brought a bill forward that might be unconstitutional. I do not think we should be in the business of arguing with them.
Dr. Smith, you feel very strongly. I must say that I agree with almost everything you have said here, so I will not grill you much on anything.
However, do you feel that the obvious option is to refer the proposed legislation to the Supreme Court of Canada to discover whether it is constitutional or not?
Ms. Smith: Yes.
Senator Milne: Dr. Dobrowolsky, you say that the absence of public consultation guarantees failure on this. This is something that should have been taken publicly to the people. Therefore, this is a constitutional change important enough that, again, perhaps public consultation could be in the form of referring it to the Supreme Court. Would that be public consultation to you?
Ms. Dobrowolsky: I think there must be broader dialogue. I am not a constitutional lawyer. From what I have researched, it seems to me this could probably be passed in terms of legal precedent given some of the decisions that have been made in the past.
In terms of political process, I think it is problematic given the history of constitutional struggles in the 1980s and 1990s. Therefore, this more unilateral approach on the part of the government would be seen as problematic.
It is an incremental change but one to a fundamental institution. I agree with Dr. Smith there. I think it needs to be open to broader discussion.
Not to denigrate all of your fine work, but in terms of legitimacy, the public is skeptical of the Senate. If you want to reform it and not leave it open to public input, that will not reinforce the sensitive democratic questionability of the role of the Senate.
Senator Milne: Dr. Simeon, I read with interest your presentation to the special committee, particularly when you say:
Once again, we are debating Senate reform. It is not exactly clear why: it is hard to see citizens clamouring for reform in the streets; and Senate reform is arguably much less important than other elements of paying down the democratic deficit, such as electoral system reform, or reform of the House of Commons.
Do you think that reform of the role of the Senate — which, as Professor Cairns has pointed out, this is the first step toward — should be discussed in the light of the fact that there are further steps to come? It is very difficult to make a decision on the first step when you are sort of hanging in limbo for the last step; you do not really know what or when it will be.
Perhaps you could also comment on retaining the current retirement age of 75, which this bill also does.
Mr. Simeon: On your first question, it seems we have a genuine dilemma here. You know that all of these issues are interrelated; therefore, you want a comprehensive process. Indeed, if we are thinking of reform of Parliament, you might want to put reform of the Commons alongside reform of the Senate.
The other side of the dilemma is that we know how unbelievably difficult it is. We have problems both ways. If we compare Meech Lake and Charlottetown, Meech Lake tried to say, "Here is one important thing we need to do; we will not look at all the rest.'' It failed, partly because of that. People said, "What about all these other issues?''
Therefore, we did Charlottetown and we said, "Let us put all the issues in there and consult much more widely.'' That, too, failed. So what is a constitutional reformer to do, given that kind of history?
I must say I really like the corrective mechanism that Professor Cairns suggested. I ended my introductory remarks by pointing out that constitutional institutional changes almost always have unanticipated consequences, and they are often very hard to undo once made.
Setting up some kind of review mechanism or sunset clause seems to me to be a very good idea. However, I think we have a huge dilemma on the question of whether we can do it comprehensively. Is it okay to do it step by step and can we even get that done?
On the retirement age of 75, I confess I have not thought about it very much; although I have to say I now benefit from the fact that we do not have mandatory retirement at age 65 anymore in the universities. Since I am about to have my 61st birthday, I am delighted by that.
I do understand that people are living longer and healthier lives. Any number for mandatory retirement is inevitably arbitrary, but I have not thought about whether we are now all living long enough that it could be bumped to 80 years. I do not have a view on that.
Senator Milne: Personally I am in favour of term limits for senators, but they should not be renewable and they should be long enough to guarantee independence of thought. We heard very clearly from some members of the British House of Lords at noon today that independence of the second chamber was absolutely essential, as much as we can be independent when the Prime Minister appoints us.
This brings me back to something that Dr. Dobrowolsky said: Given the clearly stated intention of the present government to appoint partisan people, what would shorter terms do to independence of thought in a second chamber?
Ms. Dobrowolsky: I had not really thought of a time frame in any systemic way until I was asked to do this. Then I thought more about it and concluded that nine to 10 years is probably better than eight years, just because of the independence issue. It gives senators the longer view.
Senators can still draw on their experience, so you have the aspect of continuity, but also change. I do think we need to have a term longer than eight years, but I am wondering if 12 years is too long. I think the average now is about 12 years, so would it be enough of a change to say we are going to 12 years? I came to the compromise position of nine to 10 years for those reasons — and, again, definitely non-renewable.
Mr. Simeon: It seems to me that the length of term is an important issue, but a trivial one compared to the method of appointment. If there is a fundamental problem with respect to the legitimacy the Senate, it would become worse, I agree, if we had eight-year renewable terms.
The Chairman: Baroness Deech said the same to this committee this morning.
Mr. Simeon: I think it is a holdover from our past that we have this prime ministerial nomination body. Taking that unilateral power away from the Prime Minister, or making him share it with other political actors — perhaps the electorate, but if not the electorate, then some broader set of political actors — is by far the most important single reform that one could do.
The Chairman: I think you will find a number of people here have a similar view.
Senator Milne: Professor Cairns, would you care to respond to any of that?
Mr. Cairns: In part, I think the issue of Senate terms is linked to the method of how senators get to be senators. If it is an appointive process, I might give one answer; if it is an electoral process, I might give a different one.
With an electoral process, I think you would probably give time periods that are somewhat shorter than if it is an appointive process. In that case, we want to avoid the possibility that a prime minister who gets elected for two terms — and we have had some very long-serving prime ministers — could, if he or she were so motivated, produce almost a monopoly for one party in the Senate, with say an eight-year turnover period. That would clearly gravely diminish the reputation of the Senate.
Senator Stratton: That happens right now, sir.
Senator Bryden: Professor Simeon, you expressed concern about the disengagement of senators — those of us who are tenured to age 75 — from the life of the country. In many ways, there is a very close parallel between our tenure — and our independence and our ability to say what we want — and academia. Do you find yourself becoming disengaged from the life of the country now that you are moving into our grey area, no pun intended?
Mr. Simeon: That is a tough one. I read recently that at Harvard University something like 10 per cent of the faculty is over age 70 — the highest of any American academic institution. There is some debate — not a lot, but some — as to whether it would be better if there were somewhat more turnover. It is not necessarily that these older people are not engaged in research and the life of the country, but it would open up spaces for newer, younger people coming through. I did not mean to insult senators as a group on this point.
Senator Bryden: I understand that, but can I go forward with that? I believe you all are or have been tenured professors. How long is your tenure now that they are starting to remove retirement at age 65? Would you prefer to have a 10-year term? Could you do better, would your university be better off if you churned it every eight or 10 years?
Ms. Smith: The Brookings Institution has such a system whereby you are there for only so many years, after which you might be asked to stay on for another segment of time. In some disciplines, you might get a different answer. The scientists might give you a different answer than the humanists or the social scientists might give. Sometimes on the humanist side older does mean wiser.
Senator Bryden: Sometimes it happens that way in the Senate.
Ms. Smith: Sometimes on the science side, that does not necessarily happen and the best work happens at a younger age. These things have to be kept in mind. The whole purpose of tenure in academia comes down to the capacity for independence.
Senator Bryden: I almost rest my case. That is why it is so difficult to amend the Senate. Once we are appointed for whatever motives, we have our independence immediately. No one, except the Senate or God, can take us out of it. I do not understand the difference in kind between your search and the search of your colleagues' in academia for tenure that will give you independence to express your opinions and the security of knowing that you can only be fired for cause. Senators can be fired for bankruptcy or moral turpitude or some such thing.
Some say that the Senate would be so much better off if it had a term whereas a university is better off if its professors have tenure for 30 years. Why is there a difference?
Ms. Smith: You make a perfectly good point, and it could be applied to the bench as well. As you know, in some European countries, such as Germany, judges are appointed for a ten-year or a 12-year non-renewable term. These decisions are made in various countries. We come from a British tradition that has been followed in some of these respects.
You are talking about the principle and your point is well taken.
Senator Bryden: Dr. Simeon, you indicated that in respect of the constitutional amendment for Bill S-4, in your opinion it can be done by Parliament alone.
Mr. Simeon: Yes, although I defer to the constitutional lawyers on this. I would not be definitive. I reviewed the testimony of a number of earlier witnesses and it seemed that the majority of them were of the opinion that it could be done under section 44. I would not claim the expertise to challenge that.
Senator Bryden: I asked that because when you appeared before the other committee, you said the same thing but before your panel mate, Mr. Whyte, responded to Senator Fraser. He provided a careful analysis as to why it could not be done and cited the Senate reference. He spoke to the fact that you cannot effect the essential characteristics or the fundamentals because it is basically a negotiated deal that was made between the provinces in order to form our federation. The courts took a clear position that the Senate can do housekeeping but cannot change the fundamental aspect.
There are three paragraphs to his argument. When Senator Fraser asked you for your comments on what was said, you replied, "I would not dare to challenge Professor Whyte on constitutional law, not being a constitutional lawyer.''
Mr. Simeon: I have enormous respect for Professor Whyte and he was most eloquent in that session. However, I do not think it changed my mind.
This goes back to the length of term and whether one is changing the essential character and functions of the Senate. In considering the longer term, keep in mind that the longer the term the less danger there is of altering the basic characteristics of the Senate. My general argument in keeping with the traditional role of chamber of sober second thought is that the longer the term then the more ably those essential functions can be performed.
Senator Joyal: Professor Smith and distinguished guests, we are faced with a conundrum. We have before us Bill S-4 as is, which provides for an eight-year renewable term with no age limit. We have heard from many witnesses, and the special committee heard from some witnesses, and we began this process three weeks ago. Certainly, a reasonable person can entertain some doubt about the impact of the bill on the functioning of the current Senate — maintain the same independence, the same continuity of views, the same gradual regular change of its membership, et cetera.
On the other hand, we are faced with the other choice. If we doubt the bill's constitutionality, then we need to cure the doubt. Let us reduce those doubts to the point that they are reasonable and can be dealt with in fundamental changes to this bill in the areas of length of tenure, renewability and retirement age. Under the terms of this bill, if a senator were appointed at the age of 72, he or she would stay well beyond the current mandatory retirement age of 75. Professor Heard appeared before the committee and spoke to that aspect and we have some statistics. If we want to improve the participation and the reliability of the work of the Senate, we should retain mandatory retirement at age 75.
If we were to make those changes, we would still maintain the essential characteristics and the functions of the Senate, even though tenure would be changed from a theoretical 45 years to 15 years. We have our doubts about the bill so we should either say that it is unconstitutional and invite the government to refer it to the Supreme Court or we should say that, on the basis of everything we have heard, we will try to make it a reasonable and constitutionally sound bill.
What would you do, Professor Smith?
Ms. Smith: You are in a difficult position. I remember when this bill was first tabled in the Senate. One of the premiers, whom I will not name, was asked if he supported the bill and he said yes. The press asked why, and he said that he was in favour of an elected Senate. There is a definite optics problem that puts you in an extremely difficult position on the one hand and, on the other hand, you have laid out the options — you can throw the bill out, amend it or somehow take it before the court.
I am not sure that between amendment and getting it to the court, it is necessarily one or the other. For example, you could amend it, lengthen the term, excise the non-renewability, and I presume that could bring on a reaction of some kind, and who knows what would happen then.
The Chairman: The Prime Minister invited the committee to look at what the committee thought would be an appropriate term.
Ms. Smith: That means that that is a more interesting option than I might have been led to think.
Mr. Simeon: On that point, it seems to me that it is partly a technical issue whether section 44 or section 42 is operative. More fundamentally, it is a political judgment that you have to make. I am not totally sympathetic to saying, "We cannot make the political judgment, so let us hand it to a court to do it for us.'' It could still end up in the Supreme Court, but would it not be better for the Senate, for Parliament, to make a decision and then see if anyone in the country, any of the premiers, would say, "No, you cannot do that, and we will take you to court''? You would still end up with a traditional resolution, but there would not be the politicians handing off a difficult football to the court.
Senator Joyal: Our committee is the Standing Senate Committee on Legal and Constitutional Affairs. When we come to a conclusion, after studying a bill and hearing witnesses, hearing experts, learned distinguished professors like you this afternoon, that a bill violates a section of the Charter, it is our duty to amend it. That is why we are here. The court expects us to do that. We cannot just say, "This bill pleases us, and we will adopt it, and if someone sometime contests it in the court, so be it.''
We are dealing here with the legislative structure of the country. We are not dealing with a transportation bill that changes the rates of passengers on ferries, and if people do not like it, we can change it. We are dealing here with the essential structure of the country that has to maintain its credibility in the eyes of all Canadians. That is why we have to satisfy ourselves, on the very substance of its constitutionality, that we are doing the right thing in terms of the Constitution. The Constitution has some parameters and some limits to government actions. If we want to do things that are outside Constitution, we have to change the Constitution. We cannot just say, "The Constitution is there but we will not bother with it because, on a policy level, it makes sense.'' We have to make sure that what we do satisfies the spirit and the objective of the Constitution the way it has been drafted and amended through the years.
The question I am posing to you has a dimension that for us, the Standing Senate Committee on Legal and Constitutional Affairs, is fundamental. We cannot recommend that Parliament adopt something about which we feel there is a doubt.
Ms. Dobrowolsky: I want to reinforce what Dr. Simeon said in relation to passing off difficult issues to the Supreme Court. There is a precedent of doing that. I agree with him that it is a political issue that needs to be decided in a political manner rather than passing it off to the Supreme Court.
Perhaps to try to deal with some of the legitimacy issues involved, could this Senate committee travel across the country and hear from different people and get broader feedback rather than asking experts and specialists and political scientists to speak to you? If you heard from a wider array of people, you might get more political legitimacy. Rather than making it into a legal question, you could look at the political process and open up the process to more Canadians.
Mr. Cairns: If a majority of the committee has reasonable doubts about the constitutionality of proceeding without resorting to the 7-50 formula, then they should recommend that the court pass judgement on it. If it is only an idiosyncratic position on the committee, they should not do so. It depends on what the committee decides. Do you, as a whole, decide by a majority that it is a constitutional problem? If so, send it to the courts. If one or two senators out of the 15 or so of you here think that but the rest of you do not, then do not send it. You consult. What is the informed opinion of the senators here? If by significant numbers you feel it is a problem, then you have an obligation, but if only a very few of you think it is a significant problem, then you go with the opinion that it is okay to proceed.
Mr. Simeon: Even if you did have a general consensus that it was legal, that does not decide the substance of the issue. You could conclude, "There is a perfect right for Parliament to do this, but we will still change the bill or reject it or whatever.''
Senator Joyal: Absolutely. There are two levels. There is the constitutionality, and then there is the impact of the bill on the functioning of the institution, that is, the public interest involved in the changes that will be brought, and the end result of it, as you said, professor, on the law of unintended consequences. We try to circumscribe the impact as much as we can, but we can never be sure of the end results. Those are the two levels to the judgment we have to make. When we make one, it has an impact on the other to a certain degree because, to evaluate the impact and legality of the bill, we have to measure the impact on the policy aspect of the Senate as a parliamentary institution and the role it has to bring in the legislative process.
The Chairman: Professor Smith has to go. Thank you very much for coming. We appreciate your input.
Ms. Smith: I wish I could stay.
The Chairman: Have a safe trip. Senator Joyal, are you finished?
Senator Joyal: No, I have another question for Professor Simeon, if I have time.
The Chairman: We have 24 minutes, and I have three senators on the list
Senator Joyal: Put me on a second round.
Senator Fraser: I am very sorry that Professor Smith had to leave, because you are all such fantastic witnesses, including her.
On the matter of constitutionality, Professor Simeon, I would commend to your attention, if you have not already seen it, the testimony here last week by Professor Magnet. It is extremely interesting, whether or not you end up agreeing with him.
I have one question that I will direct to all of you, but before I do that I will put one question to Professor Cairns. I thank you, sir, for drawing such a beautiful description of how difficult it is to have one bill that would be truly appropriate for the Parliament of Canada, whether it is an appointed or elected Senate. We have been grappling with this. I will ask you about the prospect of the consultative elections because I was interested in your remarks about fetters on the Prime Minister's discretion. I am asking you not for a legal opinion, necessarily, but certainly for a political one.
I remember the testimony from one or two witnesses who said that we would only be getting a pool of candidates from among whom the Prime Minister can continue to choose. I immediately tried to imagine what the public reaction would be after we had gone through an elaborate electoral process. The process set out in the bill now before the House of Commons is very elaborate, with rules for financing and the Chief Electoral Officer doing his thing. It is the real deal, in many ways, for an election.
What, then, would be the public reaction if the Prime Minister did not appoint the person who got the greatest number of votes but appointed, let us say, the person who got the fifth greatest number of votes? Is that actually politically feasible in a democratic country?
Mr. Cairns: Even appointing someone who did not compete in the election is another possibility. I think, senator, we take for granted that an election is a process of determining winners and losers. This is called a consultative or advisory election. People will judge it in that way. They will say, "This person came first, and Mr. Prime Minister, what on earth are you doing? You are appointing someone who got very few votes in this process.'' That would not only de-legitimate that candidate, it would de-legitimate the whole process of throwing it open to the public via this consultative, advisory role. I argue that even the Monahan-Hogg position that the Prime Minister could go to the larger pool of candidates, including both winners and losers, is politically a naive approach. It would be savaged in the editorials all across the country. Therefore, I argue that the discretion of the Prime Minister is almost totally undermined. I do not say that negatively. The purpose of it is to formalize his role so that the results of election dictate who gets appointed.
I do not think Mr. Harper has ever said that. I do not think it has cropped up in committees. However, I think that until maybe in stage three when we remove consultative advisory and say this is the final process, the reality would be that politically he could not get away with doing anything other than appointing the winner.
Senator Fraser: This question is for all of you, sparked by the interesting testimony that we heard earlier this day from members of the House of Lords. I think Lord Howe said that in all the various proposals for reform or change, he had not seen anything that would improve the performance of the House of Lords.
As learned observers of this institution, what do you think might improve the performance of the Senate? I think the performance of the Senate is better than most people think, but what I think is not at issue. It is what you think that counts.
Ms. Dobrowolsky: Given my shtick about representation, I think the Senate is doing a fine job as well. If you read the committee reports and the investigative hearings that have taken place in the Senate, there is a lot of fine work.
However, if you are asking me how to improve the Senate, I would focus on issues of representation, having more diversity in the Senate and having a wider range of voices.
This comes back to the earlier question regarding the age of retirement, whether or not it should stay at 75 years. I am in favour of mandatory retirement in order to have more of a diversity of viewpoints and have more of a turnover. I would be supportive of the age of 75 with respect to the turnover.
Again, to improve the Senate, I would try to focus on issues of representation and respond to the fact that the House of Commons has been very unrepresentative and under-representative of so many groups. That would be my recommendation.
Mr. Simeon: I want to agree with Professor Cairns. There is no such thing as an advisory election. If you go in that direction, of course it is a full constitutional amendment.
With respect to performance, that is a great question, and I agree with Professor Dobrowolsky. I would add two things. First, it depends a little bit on the nature of the role you expect the Senate to play. I see it as playing a limited role. That does not mean it is not important, but it is not a competitor to the House of Commons.
On the federal dimension, I have argued for a while now that instead of our total emphasis on executive federalism I wish we had more of what I call legislative federalism. Bodies like the Senate could do many things to build bridges between national and regional politics and national and regional legislatures.
No legislature, as far as I know, has had a standing committee on intergovernmental relations, for example. Why not? It is such an important issue. I have thought of this in terms of the House of Commons, but perhaps the Senate could do it. It seems to me that we need regular meetings not at the executive level but exchanges among legislatures from the provinces and the federal Parliament; for example, the British Columbia provincial and federal legislators getting together and discussing their common problems and that sort of thing.
I would think that, with some imagination, the Senate could actually become more proactive in finding ways to build bridges and communications across levels of government. I think if we could do that, it would be an enormous achievement and could get us away from some of the fractious nature of turf protection that always occurs when the First Ministers get together.
Mr. Cairns: Presupposing we are still dealing with an appointed Senate as distinct from an elected Senate, David Smith in his good book on the Senate proposes that there should be a conventional understanding that the government majority in the Senate will never go above 70 to 30. Once you get close to that figure, then there is a kind of conventional obligation to appoint members of opposition parties or individuals linked to opposition parties.
Second, I think the Senate should try to develop a public rationale for its existence that undermines the argument that it is weak because it is not elected and therefore argue there are lots of positions in contemporary society where we defer to people who are appointed to key positions, particularly courts, because we assume they bring expertise to their performance and we would not particularly want them to be elected, such as, for example, judges. Try to develop a public rationale to undermine the argument that non-election itself confirms illegitimacy. There are other methods aside from elections that can confirm legitimacy for people making important decisions in our society, and the Senate should latch itself onto that; that is, if it does not go the elected route.
Senator Milne: Very quickly, Professor Dobrowolsky, you have mentioned elections and how we should have the Senate represent more diverse groups. However, elections do not do that.
Ms. Dobrowolsky: No, I did not call for elections.
Senator Milne: Traditionally, in Canada, women seem to have topped out at 20 per cent in almost every legislature across the country, and we are 34 per cent in the Senate.
Ms. Dobrowolsky: Yes, I am aware of that. I am very attracted to some of the research and writing and some of the points that are coming out of Britain in terms of more of a hybrid model, a combination of appointed and elected. You try to get the best of both worlds in that respect.
As you say, there is a glass ceiling in the House of Commons, and it is over 30 per cent in Senate representation. I am fully aware of that. I was not calling for an elected Senate. I was suggesting in terms of performance to build on what is already there.
Senator Hays: I wanted to touch on some matters that are crossing my mind as I listen to your comments in response to the senators' questions as they relate to your presentations.
The issue of fixed terms for senators, renewable or not, has drawn from you comment regarding relevancy because of the potential for election. It touches on the powers of the Senate and, of course, the other question would be the method of appointment, which is clearly under section 42.
I raise this in the absence of my former colleague, Senator Austin. With respect to regional representation, none of you has mentioned the issue that this initiative I believe drew to the Senate floor, and that is that some provinces, in particular British Columbia and Alberta, feel that they are seriously under-represented in the Senate. If we are to address Senate reform on an incremental basis, this is an important issue to have in mind.
In other words, there is an argument for a condition precedent of setting mandates, particularly ones short and renewable, that we should first address how they are to be elected. There are other things involved, powers and so on of. If you do not want to comment on it, that is fine, but I would like to give you an opportunity to do so.
I have another question, which I will put on the table at the same time. I am from Alberta, and we now have for the third time — it has varied each time — provincial legislation that provides for Senate selection.
I like your comment very much, Professor Simeon. I agree with you that no matter what you call it, an election is an election. If a prime minister agreed to be bound by provincial legislation of that nature, there may be constitutional issues there.
Mr. Simeon: I am glad you raised that, senator. I assumed that issue was not on the agenda for today, but I am a big fan of the Murray-Austin suggestion. It seems to me it is a more obviously right thing to do than changing the terms. The problem is that this clearly requires the full amending procedure; and, as was pointed out earlier, people tend to feel very strongly about their number of Senate seats and appeal to tradition and that sort of thing.
On the substance of it, I have never been a believer in equal numbers. I have always been a believer that you need to give greater weight to the smaller regions, so it should not be purely proportional either. However, the distortions are so large now, and the under-representation of Western Canada is so huge, that if it were at all possible, I would love to.
Of course, your bill does not at all rectify the whole problem; there are still enormous distortions. Again, it seems kind of an incremental, modest, moderate attempt to address some aspect of the problem, and I have supported it all along.
Mr. Cairns: I would be in favour of the modification suggested in that other proposal going through the Senate. We would have to realize, however, that probably the Prime Minister and the government would view this as contaminating the process they are focusing on, in that it would raise very controversial issues among the provinces at a time when they want to proceed stage by stage. They have said nothing in public about what they will do when they get to stage three, but the presumption is that that will be when they come up with their recommendations for modifying the regional distribution. I am in favour; but, politically, I think the government — and you could consider this a good or bad point — would find this very unhelpful.
Ms. Dobrowolsky: In part, coming from Nova Scotia, I feel I should be representing Atlantic Canada, the Maritimes. At the same time, we are hugely over-represented vis-à-vis the West; it is seriously an issue.
However, what comes to mind is that, even though we are hugely represented, when it comes to policies that are being promoted now — equalization issues, for example — our representation has not really had an impact on legislation. Now the West is well represented in the House of Commons but not well represented in the Senate, and Nova Scotia is well represented in the Senate, yet —
The Chairman: We have three vacancies.
Ms. Dobrowolsky: Yes, theoretically, that is how many positions are to be filled. I find it interesting that we are over- represented in the Senate, yet when it comes to policy, we do not have much impact in terms of priorities; that is another consideration.
Senator Hays: Do you have any comment on this interesting Alberta law that would mesh very nicely with the Prime Minister's government, which the government of the day has proposed? I am in total agreement with my colleagues in terms of where they seem to be coming from — we are not judges, we are legislators and I am on the record as indicating I would not favour less than a 12-year, non-renewable term.
In any event, it has never been challenged or really used, although there is an argument it may have been used once, but I think that was more part of a deal on Charlottetown. What do you think of the Alberta initiative to get elected senators?
Mr. Simeon: I think it is good provincial politics, a good way of stirring the pot a little bit. I have no problem with it. There is no obligation on the part of the Prime Minister to follow whatever they decide; if they want to have a vote on that, I cannot see it as a problem at all. If we want to stir up the debate, it is not a bad way to do it.
Mr. Cairns: The bill, which has had only first reading in the House of Commons, discusses the process of election. The bill is somewhat unclear, from my perspective. It indicates that the Prime Minister could decide to have the election of senators from a particular province coincide with a provincial election, or they could have it coincide with a federal election.
I am actually opposed to it coinciding with any election, because to do so injects the bias of the politics that are occurring at the time. That the senatorial elections are being considered probably influences the outcome, which is why provinces would like to control the process by which individuals from the provincial level get selected to appear in Ottawa. I will leave it at that.
Where the process gets put is extremely important. I cannot understand how the federal government in its proposal would indicate it could be either at the provincial level at the same time as provincial election or at the federal level, with no indication that it understands the consequences that flow from where these occur. Also, I cannot see how you fit in eight-year time periods if you allow the determination of when an election occurs to depend upon when British Columbia calls a provincial election. It is unworkable.
Senator Hays: I have a last question for Professor Cairns regarding his comments about the Prime Minister's discretion in appointments of senators being fettered. Our understanding is pretty straightforward. The prerogative of making the recommendation to the Governor General is the Prime Minister's by convention, and that has been reinforced by Orders-in-Council reflecting that.
This is a question about changing the way in which that prerogative is exercised, leaving the Governor General with the power but going behind the Governor General to the Prime Minister — under section 44, in some way formally changing the way in which the Prime Minister's prerogative is exercised, either by giving it to an independent appointments commission or doing something with it of that nature. Would you comment on that and whether that would involve a section 42 amendment, which would mean the provinces would be involved?
Mr. Cairns: I am not sure I can answer the constitutional aspect of your question, Senator Hays. I think I have to agree with my colleague, Professor Simeon, that I leave that to the lawyers; I would rather not put my foot in my mouth on that.
Senator Hays: That is probably wise, but I would have enjoyed your answer.
Senator Baker: I enjoyed the witnesses immensely; it was very interesting testimony. I would like to ask your opinion — I suppose it is an academic question, but you have referenced it several times: Do you think the Senate should have a standard of review?
You referenced the appellate courts, I presume, in each one of your statements, likening that function, in varying degrees, to the Senate. Of course, if you go to any appellate court, there are very strict rules on what they can and cannot do to things referred to them.
I can imagine your problem in a classroom, if you were teaching the functions of the Senate and the only reference you can make is the sober second thought on legislation, which is usually the reference given as to what the function of the Senate is.
The Supreme Court of Canada cannot retry a case, except in exceptional circumstances. Discretion is given to the trier of fact in the first instance, the trial judge. Deference is given to the House of Commons. Do you think there should be a written definition of the standard of review on legislation that the Senate would be in some way confined to, just as judges are? Have you ever considered that? Has anyone ever written a paper on that?
Mr. Simeon: I would not know if anyone has. I would be nervous about overdoing the analogy between the Senate and the high court. It is a political body and, under the Constitution, except for money bills, it has equal powers to the House of Commons. Its deference to the House of Commons is political, not constitutional.
Yes, there should be standards. For the Senate to stand up against the clearly expressed will of the House of Commons is not legitimate in the long run and so on. As I explained earlier, my sense of the Senate is that it has some important but quite limited roles. I do not think I would be in favour of writing those down in a kind of new rubric that could then be used to deny something as simple as the right to raise a question because it is outside the Senate's purview. It would be much better to rely on the restraint of the members of the body.
Mr. Cairns: I agree with Professor Simeon. The attempt to develop an official standard of review would be a terrible mistake. The best thing is to appeal to history and what the Senate has done in past and determine whether this precedent should be followed or modified. The idea of writing it all down for unforeseen future circumstances is an impossible objective.
The Chairman: There are more as well, such as regional and minority representation.
Senator Stratton: Professor Cairns, I have heard from the other three professors with respect to tenure. I want to focus on that issue. I am not sure that I heard you speak to that. Do you accept the eight-year tenure or do you think it should be longer? If so, what length of time should it be?
Mr. Cairns: Most of those who argued it should be longer have two criteria: first, you need a lot of experience before you are socialized formally into the understanding of how the Senate works; second, assuming the existing legislation of prime ministerial appointment takes place, you want the time period to be long enough that a prime minister will have considerable difficulty if he tries to pack the Senate overwhelmingly with his own supports. Therefore eight years seems too short. Once we consider 10 or 11 years, you need three successive terms, which is not too likely to happen frequently.
Senator Stratton: I appreciate that. If we were to determine whether there should be consultation with the provinces with respect to the nomination of senators, could we not do that, in effect, by making it an election issue? In other words, could we not go to the public? Some witnesses have said that we must consult with the public. Would saying to the electorate that we would like to have a consultative process not be seen as a consultation? It would be as it is described in the bill currently and, having a positive response to that, we could go ahead with the consultative process. Would that not be a measure of consulting with the public? To do otherwise has already been tried and has failed. Could I have your response to that?
Mr. Simeon: Consulting is consulting and electing is electing, and they are not the same thing. You could think of many ways to do consultation and doing elections but there is a clear distinction between what each means. Putting those two terms together as the bill does is not feasible.
Ms. Dobrowolsky: I recall former Prime Minister Kim Campbell's comments that elections are not the time to deal with policy. This issue is important, and in an election it would be grouped with many other issues and might be overshadowed.
Mr. Cairns: If the constitutional amendment requires the seven provinces with 50 per cent of the population, there is now something approaching a convention that that has to be ratified in a public referendum. Therefore, there would be a very expensive and complicated process of consultation. We have left behind us the possibility that a major constitutional amendment can be undertaken by governments alone. This is a long-run impact of the Charter on the public consciousness of Canadians.
Senator Stratton: Given Charlottetown, the 7-50 formula and actual referendums in provinces now, the likelihood of that ever occurring is pretty remote. That is why I believe there has to be some method of doing this in a step-by-step process, because the other process, in my view, will never work.
With respect to representation in this chamber, it gets interesting when you look at the new democracies evolving, such as Iraq, where there is a floor for the number of women to be represented in their houses. In Iraq, it is stated that 30 per cent shall be women. It could be 50 per cent elsewhere but in Iraq it is 30 per cent. If you consulted with the provinces, why would you not put the floor at 30 per cent women? Why would you not go to proportional representation? The House of Commons has four parties, and at one time they had five parties. The Senate has two parties. That is not what you would call an appropriate way of dealing with representation in this chamber. How would you correct that? That is the real issue in respect of electing senators. You have to force the change so that you have better representation from the cross-section of the public, including the Green Party and the NDP, who are not represented in the Senate.
Mr. Simeon: First, the attempts to discuss electoral reform show us that electoral systems are truly complicated. The political interests involved in deciding elections are highly complicated. That makes me pessimistic about our ability, given the level of consensus that amendment requires, to devise an electoral system that would be politically feasible for an elected Senate and have it produce the results that we want in respect of representation. This is why I have come back around to the appointment process, as long as a legitimate one involving both orders of government and having certain rules in its decision making with respect to representation were developed.
Ms. Dobrowolsky: Some research from the political party system tells us that it is not good enough to have good intentions only and say that there should be more women and more diversity. Concrete measures have to be in place. For example, in Britain in the 1997 election, Labour said that they would have all females short-listed in certain ridings. They described it as positive action. These kinds of concrete steps have to be taken or it will not happen. That has to be kept in mind. It is fine to have good intentions but you need to take some positive measures to reflect that diversity.
Mr. Cairns: In general, we know that the proportional representation systems are better at picking up minorities than are the first past the post systems. The difficulty in categorizing at any time what minorities deserve the special places or in defining electoral systems to facilitate their selection is simply that the relevant minorities change over time. Someone doing this in the year 1950 would have had a very different list of minorities than they would have today, and someone doing it 25 years from now will have a different list too. You can never pin down for eternity what groups are currently excluded that we have to make special efforts to include. It is a shifting panorama, which we have to accept as a social fact.
Senator Stratton: We could add to the bill before the house now that 30 per cent of those elected shall be women. That is a start to an evolving process. Why would not you do that?
The Chairman: We have had four excellent presentations and, on behalf of the committee, I thank you for appearing today on the two main issues of tenure and constitutionality.
The committee adjourned.