Proceedings of the Special Senate Committee on
Senate Reform
Issue 1 - Evidence, June 28, 2006
OTTAWA, Wednesday, June 28, 2006
The Special Senate Committee on Senate Reform met this day at 5:57 p.m., pursuant to rule 88 of the Rules of the Senate, to hold an organizational meeting.
[English]
Cathy Piccinin, Clerk of the Committee: Honourable senators, as clerk of your committee, it is my duty to preside over the election of your chair. I am prepared to take nominations to that effect.
Senator Austin: I move that Senator Hays take the chair of this committee.
Ms. Piccinin: It is moved by the Honourable Senator Austin that the Honourable Senator Hays do take the chair of this committee. Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms. Piccinin: I declare the motion carried and I invite Senator Hays to take the chair.
Senator Daniel Hays (Chairman) in the chair.
The Chairman: Thank you, Madam Clerk. Thank you, colleagues, for this honour to serve as your chair on this special committee, which has been created by the Senate to receive the subject matter of Bill S-4, and also to receive the motion of Senator Murray with respect to a proposal for a resolution to amend the Constitution to increase seats in the Senate.
We have a standard organization agenda. I believe it is before you all. I suggest we go through the necessary motions to bring the committee into being, in effect. We will elect a steering committee as well. Then I will make a brief presentation on a proposal for the organizational work of the committee — in other words, to commence our work, which will involve research assistants. We will be relying on researchers from the Library of Parliament in that regard.
I have one other comment. It is unusual to have the Leader of the Opposition in the Senate chair a committee. If it is of any interest, there is precedent. In the Parliament of 1957, William Ross MacDonald was Leader of the Government in the Senate, not of the opposition, and also chaired the Internal Economy Committee and the Contingent Accounts Committee. That is not a bad idea; do not say anything to Senator LeBreton. In addition, Senator James Lougheed, as Leader of the Opposition, I believe, chaired the Divorce Committee. Therefore, it has happened before and those are the precedents.
To begin the regular business of the committee, the motions we should deal with are before honourable senators. The first is to elect a deputy chair. Do I have a nomination for the position of deputy chair?
Senator Segal: Mr. Chairman, I nominate Senator David Angus to be deputy chair of the committee.
The Chairman: I see no indication of further nominations. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The next item is the creation of the Subcommittee on Agenda and Procedure, which is the steering committee. Based on discussions I have had with the Leader of the Government, the deputy chair, together with Senators Comeau, Austin and Chaput, would comprise the steering committee. I have not talked to Senator Chaput, so we may have to find someone else.
Senator Chaput: I would rather you did find somebody else, if you could.
The Chairman: I may have trouble doing that. No one is nodding in agreement.
Senator Murray: The motion reads, in part:
That the Subcommittee on Agenda and Procedure be composed of the Chair, the Deputy Chair and one other member of the committee...
The motion could be that the subcommittee be composed of the chair, the deputy chair, Senator Comeau and one other member of the committee to be designated after the usual consultation.
The Chairman: Senator Murray has made an excellent suggestion. I recommend that we proceed in that way so that the nomination of those we know who are prepared to serve can proceed. The final member will be from the opposition side, to be named by the whip after consultation. Is it agreed, honourable senators?
Senator Fraser: Before we vote, did I hear we will have a four-member steering committee or a five-member steering committee?
The Chairman: Five members, and, of course, you understand why. Are there any questions?
An Hon. Senator: Is Senator Murray on the subcommittee? He should be.
Senator Murray: No, thank you. I appreciate the thought, but I just made a motion concerning the membership. The deputy chair, Senator Angus, has already been elected. Senator Comeau is another ex officio member. Then there is Senator Austin and one other to be named.
The Chairman: From the opposition side.
Senator Downe: Why do we have a five-member committee?
The Chairman: We need three from the opposition.
Senator Austin: Oh, we are the opposition; I still cannot straighten that out in my mind.
The Chairman: Senator Downe has asked why five members and not three. The explanation is that because the chair of the committee is not a member of the committee in the normal sense, but rather an ex officio member, to ensure there is no distortion, the government side will also have, on a permanent basis, an ex officio member as part of the committee.
As the chairman of the committee must vote on matters in the steering committee and so as to preserve the balance, it will be necessary to have the ex officio member from the government side on the committee — thus five members and not the normal three.
There is a second part to this motion. The entire motion reads as follows:
That the Subcommittee on Agenda and Procedure be composed of the Chair, the Deputy Chair and three other members of the Committee, to be designated after the usual consultation...
We have discussed who will be proposed at this time, and we all understand one of the positions will be filled after the usual consultation. The last part of the motion would be:
That the Subcommittee be empowered to make decisions on behalf of the Committee with respect to its agenda, to invite witnesses, and to schedule hearings.
Is there a mover? It is moved by Senator Dawson. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The next motion deals with the printing of the committee's proceedings. It is before you; I will not read it. Is there a mover for that motion? It is moved by Senator Chaput. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The fifth item on your proposed agenda deals with the authorization to hold meetings and to print evidence when quorum is not present. Where do we designate the number that constitutes a quorum? It is in the motion that the Senate passed, creating the committee. The quorum is four, for the information of committee members.
It is moved by Senator Watt. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The sixth item deals with research staff.
Senator Murray: I so move.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The next motion deals with the authority to commit funds and certify accounts. If I could have a mover, we can deal with that now. It is moved by Senator Munson. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The next item has to do with travel. May I have a mover?
Senator Chaput: I so move.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The designation of members travelling on the committee is a two-part motion, if committee members want to take a moment to read it. It is moved by Senator Dawson. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The next motion concerns travelling and living expenses of witnesses. It is a standard motion, and it is moved by Senator Munson. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The next motion deals with the electronic media coverage of public meetings. It is moved by Senator Segal. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
The issue of time slots for regular meetings is to be discussed, as well as other business. As I said, perhaps I can make a brief statement and ask for comment.
I suggest that the committee not meet as a committee except to do necessary business that could be done by telephone conference call during the months of July and August, but that the committee leave with the steering committee the task of setting a suggested hearing schedule starting in September, probably before the Senate sits, and that the subcommittee discuss with the Library of Parliament the availability of researchers. The committee does not have a large budget, so it is anticipated that it will rely on researchers from the Library of Parliament.
Having obtained that assistance, with the steering committee's approval, the committee will begin the process of summarizing the debate that has occurred on this bill in the Senate. Using that information as a basis for research work, we will need to carry out our work and provide comments relevant to our focus as we consider Bill S-4 and the motion regarding additional senators from B.C. and the Prairie provinces. We require a context within which to consider those two matters. By ``context,'' I mean looking at the recent proposals that involve modernizing our Parliament with a focus on the Senate, generally, and those things that have been important and approved by Parliament in the past and are probably familiar to most members of this committee — in particular, the Charlottetown accord and the report of the joint committee preceding the accord, which based its work on shaping Canada together. It has a good section on the Senate and Meech Lake. There are also two relevant Senate studies that former Senator Molgat co-chaired with a member of the House of Commons. There are good researchers in the library who we could ask to assist us in bringing together the relevant components of Senate reform.
We have been presented with two items: a term for senators and a proposal to increase the number of seats in what are now two regions. On the basis of that information and the review of a not-too-lengthy document, we will have a telephone conference meeting to determine what more we want. With the help of our researchers and suggestions from the committee, we will develop a list of witnesses who we might benefit from hearing, determine their availability, and draft a hearing schedule.
Senator Munson: Do we have a time line?
The Chairman: Yes, we do. If we are not sitting in July or August to do work, we know that the committee's mandate ends the last sitting day of September. That date, however, can be changed with the approval of the Senate. The thought when the motion was drafted was that this deadline would hopefully give us enough time to prepare a report that could be tabled in the Senate so that the chamber would have the necessary background to make an informed decision with respect to Bill S-4, which would be at second reading stage, and the motion as proposed by Senator Murray.
The committee's work would be done in one month, maybe through September. We would sit some weeks and not others.
Senator Munson: The words ``Senate reform'' have been used a lot. I like the phrase ``Senate renewal.'' Renewing the Senate brings it into the 21st century as opposed to reforming something that has gone terribly wrong. I think renewal is a more positive perception of what we are up to if we are to communication with the media or others about this study. It sets a positive stance as opposed to reforming something, which does not. It sounds like reform school.
Senator Murray: Assuming that the desired research work can be done over the summer months and the steering committee can get together to agree on a work plan, do we deal with Bill S-4 and with the constitutional amendment that Senator Austin and I proposed? Do we deal with them in a discrete fashion or together in terms of invited witnesses? Do we invite witnesses to address both issues at the same time? The steering committee can deal with all of that.
We should meet right after Labour Day for full days until the work is complete. That would take us at least two weeks. Labour Day is September 4 or September 5. We would come back here Tuesday or Wednesday, put in full days that week and the next, and keep at it until we are finished.
I had hoped that the government would have seen its way to put off the recall of the Senate until September 25 or 26.
Senator Comeau: We would be receptive to that.
Senator Murray: There does not seem to be much on the Order Paper. If the recall is put off for another week, that would give us a good three weeks. If we meet full days, morning and afternoon, we could hear the necessary witnesses, have our discussions and possibly come up with a report within the time allotted to the committee.
The Chairman: Rather than respond, I will let everyone comment in the way you have and we will try to synthesize a consensus position from the comments.
Senator Austin: I will start by saying that we are funny people. We have a day called Labour Day, which is a day when we do not want to work. I cannot explain it.
Having said that, I agree with Senator Murray's schedule. The committee will have to do serious work to line up the witnesses for that particular schedule. We have to invite representatives from the provinces, should they wish to appear. We have a series of academic players on the Constitution, the Senate and so on. Are they available and when are they available?
One of the questions to consider is whether other entities want to play here. I know when we talk about the Senate we have the Monarchist League and other people who invite themselves into the dialogue. The more important part is the scope of the study we want to do. We have two references, so obviously we will deal with those.
With respect to the mandate of the committee, Senator Munson said that we may want to use a different word than ``reform.'' Unfortunately, the word ``reform'' is in the style of the committee, in the mandate of the committee. I do not know that the committee itself can change that.
However, the terms of reference are quite broad. In my view, they are broader than we need. I would like to have the committee consider that we deal with this in two phases. We obviously have to deal with Bill S-4. That is the subject matter of government legislation, so it is a priority for us. We have to deal with the resolution, because the Senate said that is a priority for us. The question is whether we can deal with those two first, as, I think, Senator Murray was suggesting. Then, if we want to continue the mandate, we would ask the Senate to allow this committee to deal with other topics in Senate renewal, having finished phase one, the two measures that we are mandated by the Senate to deal with immediately. Having considered those items, if there is more we should consider, then we would go into phase two.
I see this issue, conceptually, in three phases. Representation must be balanced and equitable so that a constitutional process is possible for the other two stages, which are method of selection and powers. Those are the three main columns we have to consider.
I would say that phase one deals with representation. Then we could move to the first part of phase two, which is the way in which selection takes place.
We can consider other ways to create public credibility in the selection of senators. There are other methods of appointment. There is the British system, which we should look at, with the commission of review and, of course, methods of election, whether it is proportional or some other fashion.
I would not like to see the larger issues — legislative powers and their relationship to the House and the executive — stop us from dealing with the immediate references before us. I would not at all mind for the short time I remain in this chamber messing around with those big issues in phase two. I have many thoughts.
[Translation]
Senator Chaput: I would like to follow up on the question asked by the honourable senator concerning representation. The first item is the resolution. We will perhaps be addressing the selection method. Will our mandate also include First Nations' and official language minorities' representativeness, for example? Does our mandate allow us to go that far?
The Chairman: Yes.
Senator Chaput: Fine. I just wanted to make sure.
[English]
The Chairman: We have not resolved anything until we go around the table. These are all suggestions.
Senator Watt: First, I want to ask questions to be clear in my mind about exactly where we are headed.
In terms of Bill S-4, will we develop the evidence that we need before the matter is taken to the Supreme Court of Canada? Is that one of our purposes, to gather evidence that will be used by the Supreme Court of Canada? Or can we go to the Supreme Court of Canada today, without even undertaking to establish this special committee, to get a ruling as to whether the government can actually amend what it proposes to amend without provincial input? We need to make that explicitly clear because it is not clear in my mind.
The Chairman: I will come back to that point. We may have to discuss it a bit.
Senator Watt: On the point I raised in the Senate today, I feel it might be timely to take our study a bit further, namely, to examine what we can do for not only the First Nations, but, more importantly, the Inuit. It is not right for me to speak on behalf of the First Nations because I do not know what they want. We need to move in the direction of trying to secure a seat for the Inuit, which is something we were out to propose a long time ago. I believe that over the years Senator Murray has probably run across this suggestion. It was one of our proposals leading up to 1982 and also in Charlottetown and the Meech Lake accord when we dealt with those issues. I imagine that will be dealt with in the second stage.
The Chairman: Your point is that you want to know the committee's disposition to a reference on the constitutionality of Bill S-4, which has been raised in many of the speeches.
Senator Watt: Yes.
The Chairman: I do not want to comment on that matter, but I just wanted understand your point.
The other issue concerns your comments about — can I say First Nations' representation?
Senator Watt: No. If you use the phrase ``First Nations,'' you will be misleading many people because ``First Nations'' has not been defined to the extent that it includes the Metis.
Senator Austin: There is a definition in section 35 of the Constitution.
The Chairman: Section 35, representation.
Senator Watt: The definition in section 35 talks about the Indians, Inuit and the Metis. That is the way it is described.
Senator Downe: I like the suggestion of doing two phases, but I do not think we can do it given the mandate we have from the Senate. Senator Austin has indicated it is wide open, and I do not know how we can restrict it to the two topics. There is a consensus that we want to, but other senators may want to add additional material. We have to be careful that we do not have an agenda that is unmanageable.
Senator Watt raised a good point. Many of us believe that Bill S-4 is unconstitutional. I am not sure why we would spend any time debating whether it is or is not. Why would this committee not simply refer it to the Senate for a recommendation that there be a reference to the Supreme Court and then move on to the other items we want to discuss.
The Chairman: After the courts decide, like a couple of years from now?
Senator Downe: The court will decide when it decides.
I feel very uncomfortable about this committee spending any amount of time discussing something I believe is against the rules and will be found to be against the rules. We should cut it off at the pass and recommend a reference.
Senator Fraser: As I said earlier today, I have been impressed by arguments suggesting there are grave doubts about the constitutionality of this bill. However, it would be, on every level, unwise for us simply to conclude that ourselves. It is very important to hear witnesses and then conclude. We have all already heard constitutional arguments advanced on both sides. The committee will still have to make a decision about what it concludes, but we would not be doing the people of Canada justice if we did not hear expert opinions before reaching a decision.
Senator Downe: Senator Murray stated publicly that they had an opinion that it was unconstitutional. The Chrétien government had a similar opinion. I do not know what has changed. I do not know why we would discuss it. It is unconstitutional.
Senator Segal: Let me offer two comments for the steering committee's consideration when it gathers to look at the work plan and the frame of reference.
This is a committee of senators considering whether the Senate needs to be reformed. Senator Munson already said there is no problem here; it just has to be renewed. The only case I would make is that while that may work in this building, amongst our friends and relatives and our constitutional advisers, it does not work in the broader social context in which all the political parties of the country have to operate.
The committee will make its own decisions and we will work cooperatively in a non-partisan way in that respect. Having said that, the notion is we begin ab initio by saying this proposal is ultra vires, so let us set it aside until we hear from the courts. I agree with Senator Fraser. It would be a profound underlying of the case made by those who argue that the institution is an unconstructive constitutional barnacle that is democratically without any justification and exists because there is no constitutional way to change it. That is not my bias. If it were my bias, I would not have agreed to the great opportunity of serving here. It is a bias that exists out there. At some point the steering committee, as they sort through the various comments, have to reflect on how that might be best addressed, without in any way limiting the scope or breadth of what the committee chooses to do.
Senator Comeau: This evening, perhaps we could stick to the concept of a work plan and to try to flesh out the framework that has been placed before us. In my view, Senator Austin laid out an absolutely superb way of approaching our study.
We have the motion that was sent to us by the Senate, as well the subject matter of Bill S-4. I repeat Senator Austin's point: These are immediate items for us to handle. If we can do that, we would then be living with the spirit of what we are trying to accomplish.
I do like Senator Austin's idea of expanding our study. If we can tackle the immediate items in the course of our studies in September, we might be able to make a case to pursue further issues as we go along. I heard Senator Austin say that this would be one last kick at the can, I take it.
Senator Austin: It would be for me.
Senator Comeau: There are tremendous issues to be reviewed, but for tonight, my wish would be not to get bogged down in whether Bill S-4 should be referred to the Supreme Court or who gets appointed to the Senate, whether it be minority groups and so on. These are details that, as we progress through our hearings, we will get into further. Tonight we should stick to fleshing out the skeleton of a broad work plan. We have a mandate that is so broad that we can pretty well do whatever we want. We are not limited by anything.
The Chairman: Senator Murray's suggestions on a work plan seem to have met with approval, more or less, for post- Labour Day sittings. Inevitably, they will be a function of the research work that is done and the number of witnesses that we wish to hear. We do not want to duplicate too much, but we must obtain the best evidence that we can.
Senator Austin proposes that we focus sequentially, if I understand it, on the two matters that have been referred to us, but in a context of representation. He referred to ``method'' and ``powers.'' Hopefully, we can vary this theme with the help of our researchers and further meetings as we go along. ``Method,'' I would think, has to include the concept of ``election'' because the Leader of the Government in the Senate said that what is coming is an election and that it would be a process that would not involve constitutional change. We have to give some thought and do some work in that regard. If we do, inevitably we will be comparing it to proposals that have been made that were constitutional ab initio on the election of senators. We need an understanding of where one might go without a constitutional amendment on election, whether that is a good idea. The other important part of that would be the proposals we have had, some of them recent, on what kinds of elections might be considered.
I do not see this committee coming up with a hard and fast recommendation on things in the sense that it must be this or it must be that, but rather trying to narrow it down to, if it is election, these are the only options that seem to be meaningful in terms of previous recommendations. Committee members may want to comment on that.
Senator Chaput wanted to clarify the elements of representation, method of selection and powers.
Senator Watt raised the point about Inuit representation as described in section 35 of the Constitution Act and being assured representation in a parliamentary body, presumably the Senate, which they have now, but which is not guaranteed to them. From her speech, I know that Senator Chaput had a similar point to make in relation to francophones outside of Quebec.
Senator Chaput: Yes.
The Chairman: I am sure the researchers can give us a brief background with respect to proposals for double majorities on language issues. I am not differentiating between English and French. Someone was concerned that it was only the one language — I guess it was Senator Fraser — but of course within Quebec there are English-language issues.
On the question Senator Watt raised of what must happen to initiate a reference to the Supreme Court, my understanding is that Parliament can make a reference, but I do not think one House of Parliament can do so. This would be the kind of thing I would think the committee, if it chooses to do so, could recommend when it reports back to the Senate.
Senator Watt: The Senate or the House of Commons?
The Chairman: I am not sure. We can find out from our researchers. Parliament can ask the Supreme Court to opine, to give an opinion, can it not?
Senator Murray: Only the government can do it.
The Chairman: We would have to get the background on that question. I think individuals can, but it is very expensive. Anyway, only the government can, apparently. We will find out about that.
Senator Downe suggests that this issue should be resolved before anything else is considered. I do not sense that this is the feeling of the larger committee, but the matter can be revisited.
Senator Watt: If the government feels the onus is upon it to go to the Supreme Court of Canada, it does not have to get consent from us. The government can do that if it wishes. That is their prerogative.
The Chairman: Parliament can say to the government, ``You should do this before you do anything else.'' That is something the Senate could do if it thought it wanted to. Senator Fraser reinforced the point that we should do some work before we decide on the recommendations and hear from witnesses on the matter of constitutionality in particular.
Senator Segal had a similar point, but he has broadened it to a sensitivity. I think he makes a good point that we are not just talking to the senators or the people in this room, but, inevitably, what we do will be seen by our public, and we need to keep that in mind. Senator Comeau said the same thing.
Do I understand correctly that committee members would like the parameters of what we ask our researchers to do to be factored into their work for the committee?
Senator Watt: On the regional side, when Senator Murray and Senator Austin are taking their case forward, do I understand correctly that I would also be going along with that flow to try to secure a seat for the Aboriginals?
The Chairman: Yes.
Senator Watt: Would I have the agreement of everyone here?
Senator Comeau: We cannot stop you.
Senator Watt: We do not know at the end of the day what the result will be, but it is at least the beginning of the process.
The Chairman: It is not the first time that this has been suggested. Our researchers can give us background on where this particular proposal has come up before.
Senator Watt: The Inuit have been waiting for a seat for quite a long time now. At times, I have difficulty convincing our brothers, the Indians and the Metis. To an extent, we have advanced our case more than other people and would like to move forward. Is there a possibility of taking that into account later on?
Senator Austin: Would this individual be elected by the Inuit or appointed by the Governor-in-Council?
Senator Watt: We could discuss that.
Senator Austin: Which way are you leaning?
Senator Watt: I do not know yet. I guess we will discuss that amongst ourselves. I do not want to be precise at this point.
I am not even a senator from the North, as you know. Geographically, my senatorial division is in Quebec. If I am replaced, then most likely another native person will be appointed in my place because of the designation of my appointment.
Nunavik alone is a large piece of land — that is the way Senator Adams said it — and I am looking at one current seat for Nunavik. Off the top of my head, I would probably be looking for two for Nunavut and one for Labrador. I can look back to the research we have done in the past and the arguments we have built up before. I do not have access to that information at this point, but I have it in my old office.
The Chairman: This committee meeting is being reported, so whoever we are asking to help us will be able to relate that to other similar initiatives.
Senator Watt: I am not pushing for something that is not acceptable. Let us put it that way.
The Chairman: Are there any other suggestions for this first meeting?
Senator Comeau: The round table conversation has been quite good. We have a lot on the plate now for the researchers to make a proposal to the steering committee as to the next steps. They have a pretty good idea of where this group wants to go. I think we are fairly well under way, chair.
The Chairman: I will try to be faithful to what I heard and what I said. You will receive a transcript of this proceeding, so we will all know what that is.
I will have to give you an indication of a timeline on the research work and, with the help of our clerk, have something ready for circulation. It will probably call for a steering committee and perhaps a full committee meeting as soon as we are in a position to look at the material and propose actions on what has been suggested at this meeting. Once that is in place, the preparatory work can be started for the fall.
Senator Watt: Will that be done with a conference call?
The Chairman: The committee cannot meet as a committee other than like this, but the steering committee can.
Perhaps we could organize a friendly telephone discussion. We will record it. We will invite the clerk, depending on how comfortable she is with that suggestion, unless you all happen to be in Grise Fjord for a fishing trip.
Senator Watt: I wish I could be fishing. I will be doing other things. I will be spending most of my time on the boat.
My office will be open. Give them advance notice so they can notify me. We might have to talk over the satellite phone. I have one, so I would be able to communicate with you no matter where I am.
The Chairman: We will do the best we can, given the nature of the time of year and the problems that presents. If it is absolutely necessary to have a meeting, I guess we will have to have one.
Senator Austin: I do not think it would be necessary until after Labour Day.
Senator Watt: Let me know in advance.
The Chairman: Is there any other issue?
Senator Comeau: I move adjournment of the meeting.
The committee adjourned.