Proceedings of the Special Senate Committee on
Senate Reform
Issue 4 - Evidence - Morning meeting
OTTAWA, Wednesday, September 20, 2006
The Special Senate Committee on Senate Reform met this day at 9 a.m. to study Bill S-4, to amend the Constitution Act of 1867 (Senate tenure), and the motion to amend the Constitution of Canada (representation of Western Provinces in the Senate).
Senator Daniel Hays (Chairman) in the chair.
[Translation]
Chair: Honourable Senators, I call this meeting to order. First, I would like to welcome our guests and television viewers to this meeting of the Special Senate Committee on Senate Reform. For the benefit of our viewers, I will briefly explain the objectives of our work.
Last June, the Senate asked our Special Committee to study Bill S-4, which is a government proposal to limit the mandate of future senators to eight years, and the motion of Senator Lowell Murray, seconded by Senator Jack Austin, to increase Senate representation of Western Provinces.
[English]
We encourage viewers to visit the committee's website whose address you will see at the bottom of the television screen to find out more about our work. Our first guests will be Professor Peter McCormick and Gordon Gibson and following their presentations we will hear from Peter Hogg.
Senator Angus: I would like to add a few words as deputy chair of the committee.
In my respectful view, the Senate of Canada has served Canadians very well since it was first established in 1867. More than 850 distinguished Canadians have passed through the upper chamber rendering valuable service to the nation in a variety of ways. As in most areas of our socio-economic life our institutions should, and in most cases do, evolve with the times. Bill S-4 is the first stage of a long overdue reform process the present government has undertaken to implement with a view to renewing the Senate.
These hearings are designed to afford Canadians a unique opportunity to hear informed debate on the specific issues and the subject matter involved with Bill S-4 and indeed on a wide range of other issues related to Senate reform.
[Translation]
We sincerely hope that these proceedings will be the first step in a process leading to a reformed Senate, one that is able to carry out its role of sober second thought with regard to legislation and the production of excellent public policy for all Canadians in all regions, constituencies and provinces in Canada. Thank you Mr. Chairman. The floor is yours.
[English]
Gordon Gibson, Senior Fellow in Canadian Studies, Fraser Institute, as an individual: Honourable senators, it is genuinely a privilege to be part of this debate which I have been following in the Senate chamber and in this committee. The discussion has been excellent and long overdue.
It is also a pleasure to appear with my old friend Mr. McCormick. Along with the then Senator Manning, Mr. McCormick and I were co-authors of Regional Representation: The Canadian Partnership, a Canada West Foundation book, in 1980, which arguably was the parent of the Triple-E Senate. Mr. McCormick and I have not really discussed the Senate since then; I know my views have evolved and I will be interested to hear his as well.
As to context, the government, Bill S-4 and the motion by Senators Murray and Austin can be seen in a political and constitutional context. I will be bold enough to say that from a constitutional context, the Senate is working quite well and it would not have been a priority from my point of view, which is non-political. There are other reform issues: House of Commons reform, freedom of information, electoral reform and Supreme Court appointment process which are more urgent and simpler, but you have a reference and I will address it.
During these proceedings you will hear from experts on both sides of the issue as far as the constitutionality of using section 44. That will be my first topic. The truth is, I think we would all admit, no one really knows what the Supreme Court of Canada might say. That is the thing about courts, you never know. They could continue their love affair with Lord Sankey's living tree doctrine and feel Canada has evolved to the extent that Canada must have a democratic elected Senate or they could rely on their reasoning on the 1980 reference and feel that Bill S-4 would change what was referred to in that judgment as a fundamental feature and characteristic of the Senate and its place in the constitutional balance. Thus, it requires that the assent of the provinces be achieved. As we sit here today no one knows what the outcome would be. The course of wisdom in that situation, in my view, is to seek a ruling by reference to the court.
What is important is the intent of the framers. My view is that their intent was ``by a life term'' to remove any motives whatsoever for senators of future considerations in their mind as they decide on the public business. They should be free to follow their consciences without thought of reappointment or re-election or another federal job should their job be not renewable. A very similar logic applies to the terms of judges.
In shielding senators from the potentially pernicious influence of future considerations, if that was indeed the intent of the framers in setting the parliamentary balance, then the only way of carrying out that shielding is to make the job effectively for life. If one disagrees with the framers in this regard the Constitution can be changed, but in that case the assent of the provinces must be obtained.
Let me now address the stand-alone logic of Bill S-4. The bill must be considered on its own merits because that is all you have before you. The government has expressed its hope for some sort of electoral advisory process but we have no knowledge that this will indeed happen or what form it might take. We have to look at the result; therefore, should Bill S-4 become law and nothing else follows. The result would be almost unthinkable in my opinion.
The appointment of senators for eight-year terms would mean that any prime minister serving for eight years or longer would have the opportunity to appoint the entire Senate. Surely this is an unacceptable scenario on its face.
In the past 100 years, prime ministers in power for eight years and longer would include Messrs. Chrétien, Mulroney, Trudeau, St. Laurent, King and Laurier, for a total of 76 of those 100 years. Borden and Diefenbaker would have appointed three-quarters of the Senate; Mr. Pearson, in five years, 60 per cent and so on. The unthinkable would have been commonplace had Bill S-4 been an element of the original Constitution of the country.
As a second comment on the stand-alone Bill S-4 scenario, I will reiterate the changes and incentives referred to above if the terms were to be shortened to eight years. Short-term senators would always make their decisions with an eye cast on improving chances for reappointment or re-election, if another term were renewable; or securing one's future in other ways with other federal jobs within the gift of government if the term was non-renewable. This is only to recognize human nature — it is not to be critical — and this is something that no legislature can change.
Such incentive patterns exist in other governmental offices, including members of Parliament, and, in general, are hard to avoid. The question is whether those incentives should be imported into the Senate when the framers went to such pains to create the current balance. In my view, a stand-alone Bill S-4 Senate would be a huge step backward and yet that is all you have before you.
Turning to the subject of Bill S-4 plus advisory elections, let us go one step further down the imaginary line, over the constitutional hurdle, past Bill S-4 and into the elected Senate option.
First, is it likely, since the current government sits as a minority that a successor government might not agree?
Second, would future prime ministers agree to be bound? The legislation, of course, would be advisory only. What would happen if Quebec ``elected'' a totally separate Senate group; would a prime minister proceed with those appointments? We simply do not know.
Third, what would be the electoral framework? A number of questions apply here — what electoral system, administered by whom and when?
The Senate is often spoken of as a sort of representative body of the provinces though, of course, the premiers claim that function. However, on that logic, should the provinces set the timing and manner of senatorial advisory elections? Would one allow province A to have a different election system than province B, and province C to use its own legislature as the electorate?
On the other hand, if the system is uniform and run by Ottawa, as Mr. Harper seemed to indicate to you the other day, does that constitute an unacceptable shift in the balance of power by the creation of a new ``democratic'' institution in Ottawa at the centre? Would senatorial elections held by Ottawa not probably ignore vital provincial issues in favour of national partisan questions?
Very importantly, the Senate, as currently appointed, has provided quite good representation for women and minorities. It is an accepted truth of political science that if senatorial elections were to be run on the first-past-the-post system, as used in the House of Commons, such diversity would be dramatically reduced.
What then about some sort of proportional representation to answer the minority question? There is a problem here. Proportional representation of any sort requires multiple member constituencies. What if province X had only one Senate vacancy at election time? What about Quebec's 24 senatorial divisions that are constitutionally entrenched? It is difficult to see how proportionality could be introduced there without a full-blown constitutional amendment.
The list of technical questions is long and it not surprising the government has not resolved them yet. However, I put this question to you: Is it responsible to pass a Bill S-4 term limitation bill without the election information? It is clear to me that elections to the Senate would be unacceptable without term limits, which is presumably why the government introduced Bill S-4, but it is equally clear that term limits are unacceptable without an electoral system.
Does that not lead one to insist that the issue should be considered together, rather than separately? I would suggest that respect for the Senate requires nothing less than that these issues be considered together.
Moving past all these objections, let us assume that an electoral system produces an elected Bill S-4 Senate. What would we get? We would, in my view, have a constitutional monstrosity with a capacity to provide extremely bad government and put strains on the federation, which could lead to its breakup.
To describe this remade Senate, its powers would be unchanged, co-equal with the Commons. The distribution of seats would be unchanged. In particular, and from a financial point of view, the seven equalization receiving provinces would continue to outvote the equalization contributors in the Senate by 69 to 30. I am leaving British Columbia out of that calculation at the moment because it is neither one nor the other. The Atlantic provinces, with 7.5 per cent of the population, would continue to have about 29 per cent of the senatorial votes.
That is fine as things are today, but the Senate, under this assumption, would then be elected, democratic and, therefore, legitimate. An elected Senate would normally claim, and be entitled to claim, that it represented the people as surely as did the lower house — and, indeed, any given senator, as has been said often here, would represent far more people than any given MP. The legitimacy conferred by election is enormous, and the Senate would become de facto, and in power terms, co-equal to the House or even more so, as is the case in the United States.
I will skip over the worries about deadlock between two such democratically elected chambers, which so exercised the framers, by noting that Australia manages to make a co-equal system work. However, there is another problem. We would enter, with a so-called elected Senate under existing distribution of seats, a period of what I call a tyranny of small jurisdictions — an affliction that now envelopes the United States Senate. That body is wildly unrepresentative of America, based on a constitutional compromise more than 200 years ago.
It is not generally realized what this has done to American politics. As a dramatic example, in the 50 years preceding the U.S. Civil War, the popularly elected House of Representatives six times passed legislation abolishing slavery. The Senate stopped that abolition in each case. In our times, the major social problems of the United States are in the big cities and the big states, but the Senate is controlled by the small states that do not need to worry about such things.
My point is this: It is very dangerous when we allow any powerful democratic actor to be wildly unrepresentative. Yet that describes the current distribution of seats in the Canadian Senate.
With the existing appointment system, and the lack of democratic legitimacy, the Senate exercises a proper restraint in the use of its powers. With the election of senators, that would end. The tyranny of small jurisdictions would assert itself.
Every measure coming up to the Senate from the House would be subject to tweakings and bendings, large and small, and what we would have in the end is a conveyor belt of money in favour of the less productive provinces over the more productive and populous ones. This would be a recipe for the breakdown of federalism, which is fundamentally based upon a perception of fair treatment of the constituent parts.
Canada, as presently constituted, has a tradition of bending over backward, through the equalization program and other measures, to assist the poorer provinces. This goodwill should not be further strained.
Some argue these problems are merely hypothetical — I caught a hint of this in the Prime Minister's remarks the other day — because they would be solved before they became too serious by way of constitutional amendments. However, the tyranny of small jurisdictions of which I speak applies equally to the amending formula, potentially frustrating solutions.
My conclusion then, if the Bill S-4 process is constitutional, if it passes Senate and the House, if an electoral system for the Senate is then agreed, if all these difficult and even unlikely things come to pass, what would we then have achieved — big trouble. I cannot think this is truly the intent of the Government of Canada or of the supporters of Senate reform, of which I have been one.
What are we to do if we want Senate reform? In my 2004 Fraser Institute paper, called ``Challenges in Senate Reform,'' I raised the above and many other difficulties in reforming the Senate, such as the absolute opposition of provincial premiers who want to be top dog in their own province. I suggest the traditional negotiating approach to amending the Constitution for Senate reform is unlikely to overcome these difficulties.
Therefore, I propose the adoption of the instrument we used in British Columbia with success to develop a proposed electoral reform — our citizen's assembly. A similar exercise is now under way in Ontario. Citizens' assemblies can work objectively on constitutional questions of this sort and can have the democratic legitimacy needed to overcome the built-in barriers to Senate reform. At some point, through public hearings or otherwise, the Senate might want to examine that possibility, given your openness to new ideas for this body.
For the moment, I would respectfully advise as follows: First, Bill S-4 should not be passed by the Senate until it has been referred to the Supreme Court and has obtained a certificate of constitutionality. The delay is not material in the sweep of constitutional history. Alternately, you could add a coming-into-force provision that would require a certificate to be obtained before the bill could come into force. Second, whether or not there is a court reference, Bill S- 4 should not be further considered and voted upon without adding to it and merging with it the companion legislation in respect of advisory elections. This delay, according to the words of the government, would be minimal and the two measures are inextricably bound. Third, any ``constitutional monstrosity'' of an elected Senate with existing powers and regional distribution should be opposed. Fourth, a citizen's assembly could provide an alternate route.
There is a rule of complex systems in which you cannot change only one thing. The theory was begun by biologists speaking of the environment but holds equally true of politics. Many apparently simple and innocuous changes in complex systems can have unintended consequences. The democratic governance of the Canadian federation is exactly such a complex system, and Bill S-4 would be exactly such a change. I would suggest, Mr. Chairman, that it be handled with all the caution that that implies.
Peter McCormick, Chair, Department of Political Science, University of Lethbridge, as an individual: Since I have provided a copy of my presentation, I will highlight it only and then respond to some of Mr. Gibson's comments.
I thank senators for the opportunity to appear before the committee. We have been working on Senate reform for some 30 years. We share this with our country because Canadians have been talking about Senate reform for a long time as well. The story we always tell, but have never checked to know whether it is true, is that Senate reform was debated in the First Session of the First Parliament, but we do not have much to show for 139 years of talk. We have fiddled around from time to time with the basis for representation, what the regions are and what each one gets. We did away with a life term and replaced it with mandatory retirement at age 75. Ironically, the only two things currently on the agenda are senatorial terms and the basis of Senate representation by jigging the various regional groups.
In my view, the Senate, as originally constituted, has three design flaws, although perhaps they were not seen clearly as flaws at the time. The first mistake was to take as our model for the Canadian Senate the House of Lords. We appointed people for enormously long terms to sit as the chamber of sober second thought. In an increasingly democratic age, this has undercut the credibility of the Senate and made it a smaller show relative to the other place.
The second mistake, and the biggest one in retrospect, was to give the unilateral appointment power to the federal government. I am not suggesting that unilateral appointment power to the provincial governments would have been better, but rather an interactive mechanism that would not have floated the Senate away from the realities of provincial politics would have been preferable. This means that instead of being a regionally based house of criticism, the Senate is in many ways reduced to being an echo of what is happening at the national level, at times at a time lag of one or two decades. That was an unfortunate waste of an opportunity.
The third mistake was to invent a representation formula based on regional groupings. Whatever was true in 1867, regions do not make much sense in Canada today. Mr. Roger Gibbins told us 25 years ago that regionalism is in decline. That is a polite phrase because, in fact, regionalism is dead while the provinces live.
I am an Albertan and, as far as I am concerned, Saskatchewan is the only prairie province. Regions are a convenient way for other people to lump us together for their purposes. It is a way of creating first-class and second-class provinces. It is yesterday's language at best. Yesterday, regions; today, provinces; and tomorrow, who knows, cities? The combination of the three mistakes is the reason that we have been talking about Senate reform for 139 years.
The government's core and only proposal is to restrict the term of future Senate appointees to eight years. I disagree completely with my colleague, which we do from time to time, I think it is clearly within the power of Parliament alone to amend that part of the Constitution. The Senate reference from 1980 related to a different document and a different context. There was a general power of amendment with two specific sets of exceptions, and this does not fit within the exceptions so get on with it. By my reading, it is within the unilateral power of Parliament to amend that part of the Constitution.
I find this proposal a mildly interesting idea because it would provide a quicker turnover in the Senate. I was surprised to see how slow that turnover is and my estimates were way off. A faster turnover would not be a bad thing in an age when people deem three years ago to be a long, long time. The Senate is working on a different clock and shorter terms of tenure would address that in conjunction with the serious qualification that Mr. Gibson described so graphically earlier. Without that second step, it would make the Senate even more quickly into an echo and a puppet of the current government, thereby undermining its potential contribution.
We are told that this is only the first of several steps and the next will be some kind of elections that will somehow engage at least provincial populations and perhaps provincial governments. There are many ways of running elections but, especially for small numbers, I do not like most of them. If you cannot see what the elections look like, you have no idea of what you are getting. I can understand the reason that regional rejigging has been suggested in the Senate now. It was a gamble when the group that I was part of persuaded former Premier Don Getty, first, and then former Premier Ralph Klein to elect Senate nominees — that ``weird sideshow'' in Alberta.
We knew at the time it was a colossal gamble. We were gambling for the opportunity to keep Senate reform in the public attention. We were risking that everyone would hop on the bandwagon and start electing Senate nominees, the federal government would start appointing them, and then we could never re-jig the numbers. The regional numbers are a problem in the Senate. From the way this is going, it looks very much as if we lost the gamble, and the price of getting some kind of election may be not to get a major fix in the numbers.
I am less sympathetic to the idea of reworking Senate representation so as to make B.C. a half region on its own. This is not because of any disrespect for the only province crazier than we are. This is because, as a professor of political science, when I teach first year students about the distribution of seats in the Canadian Senate, they laugh. This is not a good start. Now it will be funnier. We will have four regions, but not really four regions, plus two add- ons, plus six different categories of seat numbers to which 10 provinces will be assigned. It did strike me in passing, why not go the whole hog and have a different number of senators for each province? That could not be funnier than what we have right now. My basic point is that regions are dead. We should just confront that and talk about representing provinces as provinces rather than keep inventing and reinventing regional formulae that might have worked once but have not worked for a quarter century.
Since you are giving me my moment in the spotlight, I want to step back for a moment and say I wish we would approach the problem of Senate reform with less of a nose-to-the-glass approach. We are talking here about minor jigging to an existing system which has some strengths and some weaknesses. Since we are living in a century with a 20- year run of an increasing relevance of Senates and increasing number of Senates in the world and increasing credibility of upper chambers in many countries, maybe we should step back and rethink it a little bit.
The function that you focus on is the chamber of sober second thought. The experience of other countries seems to be that that only really works credibly if you have a clear system of alternative representation operating. The historic defence of upper chambers always was multiple representation. You represent a set of people in two different ways, and those ways engage in a conversation. It does not need to be co-equal legislative authority, but that is a whole different can of worms and I will not even go there. Of course we need to change the powers, but the way you get an upper chamber really operating is if it has a clear basis of alternative representation, and that gives it a voice with which to speak. In Canada, we have never really found that.
The second function of a Senate, the Triple-E, is an autonomous, powerful body that represents regional interests in a chamber in the national government. That was a dream worth talking about 30 years ago. Provincial premiers and their authority were beginning to grow. Premiers were starting to play more of a role in national government. I think there was a lot of open institutional space and maybe — more likely not — you could have created an elected Senate that could have moved into that zone. I always understood, even though people kept confronting me at conferences as if I had somehow missed this, that the growth of an elected Senate would be at least as much at the cost of the future pretensions of premiers as it would be at the cost of the national government or the House of Commons. To me, that was always the point. Now, 30 years later, I think we have missed the boat. The window is closed. I think the premiers have clearly occupied all the available space. I do not think there is room for a Triple-E Senate. It is like putting your plants in too late in the spring. There is not enough room for that one to grow because it is already in the shade. Well, there is nothing but shade right now. I still think it is too bad. I would not have minded seeing a Triple-E Senate, but I am not sure it works anymore.
The other model was to use the German-style Senate to integrate provincial and federal governments. Again, the integration has gone too far apace. There is not the need we could have argued there was 30 years ago. The institutions that have evolved are already in place. Again, that space in the garden is used up.
What are we left with? I would like to leave you one idea to play with — not a fleshed out model or a serious deep proposal, just a professorial ``what if.'' We can tease out another opportunity from the Senate of France, which you may have studied. The Senate in France is selected in a truly strange way I have never completely understood except that it involves municipal and urban government institutions in kinds of electoral chambers interacting with members of the national assembly to generate the Senate.
The great constitutional failure of Canadian federalism, as of American federalism, is its inability to address the urban areas generally, both the growing super cities that most of our citizens live in but also the smaller rural units of the various provinces. There is a double challenge there. We are not serving either group particularly well. I wonder if someone could not come up — which means I have not — with a way of drawing on that and using the Senate as an expression of that voice. If dual representation is the key to a viable Senate, then maybe the dual representation we should be looking at is not chasing regions, which I do not think we will find anymore, but maybe the better thing to do is to chase cities. Perhaps that is a better vision for the future.
The basic message is that Senate reform is worth doing because upper chambers are an important part of many countries in the world. The book I was looking at said 61 countries had upper chambers. I read in your debates the other day that someone had a more recent source of 73. That number itself is interesting. There are more Senates in the world than ever. The generalization from academics is that they are a more active part of their countries than they have been, with more credibility and more voice. Therefore, Senate reform is a good idea because Senates do useful things. I just hope we can put some reforms in place to allow this Senate to find a stronger role so it could do the same thing for this country.
Senator Austin: I thank both Gordon Gibson and Peter McCormick for their valuable papers presented this morning and valuable issues brought to our attention. I have too much to ask and too little time to ask it.
I would put this proposition to you, Professor McCormick. You have outlined some very attractive directions for Senate reform. I wish we were debating the larger issues. What we are looking at is the viability of Bill S-4 and the viability of the resolution of Western representation that was introduced by my colleague, Senator Murray. Because of my limited time, I want to focus with both of you on those two issues.
As Mr. Gibson has pointed out in his paper, the Atlantic provinces, with about 7.5 per cent of the population, would have 29 per cent of the senatorial votes in the remade Senate, if the Western representation motion were to pass. Under Triple-E, the Atlantic provinces would have 40 per cent of the representation. You are dealing with an issue in which you are trying to move away from regions and toward the representation by institutions of the issues that concern most of our population.
Do you feel, Professor McCormick, as do some witnesses, that an incremental approach to Senate reform is necessary? You have given us ideas that are very exciting, but in our practical world, you have always sought some way of Senate reform. The modality is either dealing with all the issues at the same time and resolving them, which very few people believe is do-able, or you start incrementally. On that conceptual approach, do you agree that Western representation is a significant issue in Western Canadian political reality today and whether an incremental approach, in spite of your concerns about regions and divisions, would be of some value? Mr. Gibson has made it clear, and I happen to agree with him, that we should not deal with Bill S-4 until we see the electoral scheme the Prime Minister has told us he will introduce in the fall. In your view, could Bill S-4 be approached on its own merits and does it appeal to you on its own merits?
Mr. McCormick: The first problem is that addressing regional representation certainly puts you into the general amending formula.
Senator Austin: We are there.
Mr. McCormick: That is a swamp. The trade-offs begin fairly early in that process.
Bill S-4 on its own, straight up, just appoint senators for eight-year terms and not change anything else, does not help a thing. Shorter terms over the long run are mildly interesting, but if the price is that the prime ministers get a complete reflection in the mirror part way through their second term, then no, that is not worth it. I want to see the electoral systems, and, as I said, I expect not to like most of them. Most of the options do not work. The smaller the number of people you are electing, the harder it is to build in mechanisms that will generate broad representation.
On its own terms, I do not like Bill S-4 very much. I had to jump up and down over the regional thing because it is a standard thing for me — it is reflex.
In terms of fixing the numbers, it is nifty. I looked at the numbers and I said, that is kind of fun. I know my students will laugh even harder if I have to lead off the Senate part of my courses with a dog's breakfast of numbers that can only be explained sequentially because they do not make any sense coming in the front door.
In terms of addressing the concerns of the West, showing that you are listening, changing the dynamics in the Senate a bit, the numbers are intriguing. Apart from the regional thing, I like it. I have just admitted it in public so I cannot say I will not admit it in public, but it would not have been my first choice. My first choice would have been to get us back into Charlottetown again. We have all be there once, which was once too often; let us not try another time. Incremental progress is the way to go.
Senator Austin: I know that I am putting you in the position of commenting on the idea proposed by Mr. Gibson of a Senate-designed citizens' assembly to look at all the issues the two of you have presented. Do you believe that is a viable process?
One of our concerns, and it has been expressed in passing by both of you, is what kind of Senate is apposite to the Canada of today and the emerging Canada? What should our powers be? Of course, that is all wrapped up in the future of Bill S-4 — an electoral process and the challenge to the lower House, et cetera.
Would a citizens' assembly create the kind of debate about the Senate and national governance that would be progressive and properly analytical? Can you see that on a national level?
Mr. McCormick: The British Columbia citizens' assembly is one of the most exciting things that has happened in Canadian politics in the last decade. It was a marvellous experiment. All the sceptics going into it were largely disabused of their fears.
I had colleagues engaged in various aspects of it. They always came out of the sessions stunned by the way it had worked — the professor could not go in and stampede the poor bumpkins. The bumpkins would not stampede; they picked up their own dynamic. The feeling of some of the academics involved was that the way the assembly had been set up, it looked like it was being steered toward a particular destination. Well, it did not get to that destination.
Everyone I talked to that was involved with assembly said it was an investment of an enormous amount of time, but most of that time was the time that citizens were willing to volunteer. It was an incredibly focused conversation, like a high-level seminar. You could not bluff these people or stampede them. It was a wonderful process. They all came back shaking their heads saying, ``Democracy is great and we should try it once in awhile.'' I think it would be an exciting thing to do.
This is the common theme in all the research done on upper chambers around the world today. This is the thing nobody is talking about or studying. We do not even know how some upper chambers around the world operate. No one has even done the descriptive work on it yet, which is what we all take for granted so we can start spinning high principles.
Upper chambers are being designed and revised around the world every year or so. There are many ideas out there. It would be fruitful to have an opportunity to explore them in a way that could engage the interests of Canadians and sort out issues such as the power question — the relations between the upper chamber and the lower chamber.
The bad news is it is never smooth. No answer really makes all the problems go away, but there is a variety of ways to handle it and ways to think about the material.
Senator Austin: The nature of the process should be one of checks and balances on the power of the other so that we have a public debate on issues of significance to the polity of the country. That is the kind of institutional balances we should get.
My view is, and I think you are both saying it in your implied premises, that the public has opinions but not a real appreciation of the Senate today or the potential for an upper chamber in the country. I was intrigued by Mr. Gibson's suggestion, but I do not know how we would organize it. That would be another question, but I am intrigued by the idea of the public debate being focused and being apart from the professional political community.
I notice, Mr. Gibson, that you did not address the Western representation resolution. We have seen Dr. Gibbins yesterday and Professor McCormick today both accepting, along with yourself, that there is a serious problem in Confederation with the Western representation as it is today in the upper house — whatever upper house it would be. Senator Murray and I are trying to address, in a very pragmatic way, an issue to take it off the table so the rest of the Senate reform process could go forward. Could you comment on Western representation? I do not want to lead you too much. I would like to, but I know I cannot.
Mr. Gibson: There are a couple of things about the motion that I like very much. First, the Senate itself is using its power to get involved in the constitutional amendment process, and I think this is a good thing. I believe either Senator Murray or Senator Austin said the other day this was a first for the Senate, and I think that is great.
As a Westerner, I am naturally pleased by the thrust of the motion, which would increase Western representation. However, at that point, I have to say I get worried that you cannot just do one thing. As a westerner, foregoing my attempt to be national and putting on a British Columbia hat, this proposal for increased British Columbia representation might be fine with a Senate with that kind of powers. However, with a Senate with this kind of powers, I do not know if I would like it that much.
Senator Austin: You might want more.
Mr. Gibson: Unfortunately, my answer to your incremental question is that I am afraid serious Senate reform cannot be incremental. These things are so intertwined and so many tradeoffs are involved, you have to deal with them all at once. I understand that is a serious constitutional problem that is messy and complex. That is why, searching my mind, I came up with the citizens' assembly idea because that is the only democratic tool I could think of to find its way through that.
If I can put in a small plug for the citizens' assembly, it worked superbly well. These were 160 ordinary people who came together knowing nothing about electoral reform. At the end of several months, they left as real experts and came up with a good solution that got 58 per cent of the votes of British Columbians in a referendum. Senate reform is more complex than electoral reform, but I think an assembly could handle it.
Senator Angus: Gentlemen, these were very interesting presentations. It seems to me you are both of the view that the government is on the wrong track in its endeavour to get a process of Senate renewal started. Is that a fair comment?
Mr. Gibson: Not for me. I think the government is to be commended for concerning itself with Senate reform. I just do not think Bill S-4 is the way to start.
Senator Angus: That is what I understood you to say.
Professor McCormick, are you of the same view?
Mr. McCormick: You are cutting the pieces too small. If Bill S-4 had not only the notion of eight-year terms but also a clearer indication of how the people would be selected for the eight-year terms, then that two-part package would be easier for me to get my mind around. I worry that we might end with only Bill S-4 and not get back to it for awhile; that would be a step back.
Senator Angus: You have read the Prime Minister's comments in which he indicated flexibility in the matter of tenure of six, eight or 12 years. He had an upper limit in mind of 10 years, perhaps, and the government is flexible on the renewability of the tenure.
What would you think of a version of Bill S-4 that said senators would have a 10-year non-renewable tenure that would not come into force until the proposed companion legislation, which we have been told is coming soon, is proclaimed as well?
Mr. McCormick: First, tenure must be non-renewable; otherwise it raises in spades the issue of independence. Second, I forgot to mention that the eight-year term is fine. I looked at a table of the terms for members of upper houses of other countries and, at eight years, Canada's Senate would be tied for the second longest terms in the world. A tenure of ten years would give Canadian senators the longest tenure. Currently, France has the longest with nine years. The average is five years, with four years being the second most common length of tenure.
I do not see anything wrong with eight years. It would be better not to take a step back so that we could take a step forward. There are some electoral systems that I would be delighted to see and others not so delighted to see. The single-member, plurality vote constituency is an abomination. To have another set of such elections would be too much to bear. My sense of even the modified version is conditional because too many things can go wrong around the next corner.
Senator Angus: I believe that I heard you both say in different ways that both of you are subscribers to the Triple-E Senate movement.
Mr. McCormick: We were the major instigators of that; please don't demote us.
Senator Angus: Exactly. I understand that there is no longer such a movement. The principles enshrined in the original Triple-E, as clearly explained to us by Minister Mar from Alberta, are no longer principles that you gentlemen would support; is that fair to say?
Mr. McCormick: There is still a Triple-E movement and his name is Mr. Burt Brown. My understanding of the realities of institutional reform is such that I have reluctantly moved on.
Senator Angus: Neither of you has said this, nor could I infer from what you have said, that the proposition being that the status quo is not acceptable in your view; is that fair to say?
Mr. McCormick: Absolutely.
Mr. Gibson: Certainly, not in my view. In my view, as I said in my paper, if one looks at the House of Commons and the Senate, one can see that the Senate is a far superior chamber in terms of the work that it does as compared to its mandate and the House of Commons. If you want to reform a House of Parliament, the House of Commons is the place to start.
Senator Angus: Someone else mentioned that, and that is interesting, but the public has not caught on to the idea. Whatever the dynamic of public opinion, the Senate is the target for change. We are trying to deal with that but our report might mention the need for reform in the other place. The status quo at the Senate is not acceptable to either of you; is that correct?
Mr. Gibson: It is acceptable to me. I would prefer to see Senate reform, but it would have to be the kind of Senate reform generated by a citizens assembly that had broad, public support rather than be a piecemeal reform.
Senator Angus: Would abolition be acceptable to either of you as opposed to the status quo?
Mr. Gibson: Not to me.
Mr. McCormick: Nor to me.
Senator Angus: I asked the Prime Minister if Bill S-4, in some amended version, perhaps, but in some incremental process to try to modernize this institution does not fly with us and he indicated how it was introduced in the Senate rather than in the House of Commons so that senators would participate in the process and buy into a renewal process. His indication and his read of the provincial premiers was that he would never get consensus on anything except abolition, if he could not succeed with the first steps outlined in Bill S-4 first. It was a kind of veiled threat. Did you note that?
Mr. Gibson: Certainly, one saw that, but there is a constitutional difficulty with that position. Abolition would require 100 per cent and that simply will not happen, in my opinion.
Mr. McCormick: That would not be desirable. An upper chamber revival has been happening around the world for 20 years. It is one of the less highly visible, less publicized and less academically studied trends of the last 20 years; but it is clearly happening. It would be a pity if we stayed with our current Senate all this time and then, just when people begin to get their act together on what upper chambers should do, even in systems dominated by a lower chamber, we decide to abolish our upper chamber. That would be highly unfortunate and not desirable.
Senator Angus: Both of you think that an upper chamber for Canada is a good thing; that we should have one; that abolition of the Senate is not an option; and that the status quo, while full of imperfections and not up to modern trends, is better than developing a process that could result in a constitutional monstrosity, leaving us with various processes to wrestle to develop something that would work for Canada.
I find fascinating the whole concept of the citizens assembly, although I know nothing about it. I gather Senator Austin found it interesting. I simply do not have time through these questions. I hope that others will explore the concept of a citizens assembly that perhaps we could recommended as part of a process.
Mr. Gibson: I would refer senators to a research source. One group that has taken particular interest in the idea of citizens' assembly is the Kennedy School of Government at Harvard University, which is one of the leading democratic theory research organizations in the world. You could consult papers by Mr. Dennis Thompson or others and find exhaustive and complimentary studies of the British Columbia process and their ideas as to how this might be expanded and extrapolated into other areas.
Senator Harb: Mr. Gibson and Mr. McCormick, both of you made impressive comments this morning and I thank you for that. It seems that you not only understand the issues, but also you have the best interests of democratic institutions at heart, both the House of Commons and the Senate.
My question deals with a comment by you, Mr. Gibson, in one of your papers in, I believe, 2004. You said that in particular a plan of electing senators to the existing chamber would lead to a constitutional horror show. That would seem to fit well with your comment on Bill S-4. I understand you to be saying that introducing and passing Bill S-4 on its own does not make much sense because it creates a power grab in the hands of prime ministers. However, bringing in Bill S-4 with the intention of adding an additional bill to elect to the existing chamber, as the Prime Minister has alluded to, would lead to a constitutional horror show. As well, you spoke to the citizen-assembly style, which I think is a terrific idea if properly planned. It is my understanding from your comments that we are not in conflict, but this is a Senate committee dealing with a bill that could affect our well-being. We have a bit of a conflict of interest in deciding what is going to happen to us.
On the other hand, looking at the House of Commons and in particular the Prime Minister and what he is trying to do with Bill S-4, he is also in a conflict of interest. In essence, if Bill S-4 passes, it will give him a lot more power.
I believe that you are trying to find us an ``out.'' You are saying that whatever you do, this is not the way to do it. A group of individuals or experts or people's representatives could deal with it best without the pressure or without the potential conflict that might arise. Am I correct in saying that Bill S-4 represents a conflict of interest for us, as well as the Prime Minister, and should be referred to a third party?
Mr. Gibson: The British Columbia premise for the citizens' assembly was that talking about reforming an electoral system is a clear conflict of interest for politicians. That was very clear.
Fundamental institutions of democracy really belong to the people, not to the politicians. Therefore, in this particular case, it was thought that the assembly offered a route where people could in fact deal with certain issues.
I think the same thing is true of Senate reform. I do not mean to be critical of the Prime Minister or any politician who is advancing it; I congratulate them. I do believe it is essential that whatever process is adopted must be one that can employ the wisdom of the Senate, the wisdom of the Prime Minister's Office and the House of Commons in developing whatever happens. It must in the end, because I do believe it belongs to the people, in the end it should be validated by a referendum if there is to be a constitutional change of this kind.
Yes, I will agree with you that there is a conflict of interest, but I do not mean to be critical about that. It is simply built in.
Senator Harb: My colleague brought up an interesting point. In order for us to avoid the whole notion of conflict, we could approve in principle or approve a resolution that would postpone the proclamation of this bill until such time as a proper package of reform is put on the table. Furthermore, based on your comments, and Mr. McCormick might also care to comment, perhaps the bill should be moved completely out of the hands of the politicians because it does not matter how you slice it — we are in a conflict. Would that get us out of the corner? We are all in a corner. The Prime Minister is in a corner because he moved ahead with his proposal. We are in a corner because we have a piece of legislation that will affect our well-being as senators. What might work, in the interests of the institution, is to move it out of our hands. Do you have a suggestion that might get us out of this situation?
Mr. McCormick: You can only refer it to an outside body that will take a considerable length of time to study it. The citizens' assembly is a wonderful idea, but you do not do it on a weekend. It has to be set up over a year and run for about a year, and then you would have a package, if you are lucky, worth looking at. All sides have to agree that this issue is big enough and messy enough and potentially embarrassing enough for them. In the standard logic of any democratic body, there are certain sets of things you move outside for someone else to study. You can describe it cynically or positively; it does not matter, the basic logic is still there.
Mr. Gibson: I cannot underline that point too strongly. When Mr. Campbell hired me to design the citizens' assembly in British Columbia, I consulted all the political parties. There was unanimous consent from the parties that this was the way to go. I think for this process to work there has to be general consensus among the political classes that this is the right way to go, otherwise I am afraid it will not have the right mandate to start with. It has to be mandated by you, the politicians, or it will not work.
Senator Tkachuk: I want to touch on the eight year term, as well as the question of independence raised by both of you.
The fact that we are sitting here today and discussing this issue is because of the legislation moved forward in the Senate. It is captured our attention. I think that the Senate is in a conflict of interest discussing these bills. I would also point out that I am intrigued by the notion of a constituent assembly.
Mr. Gibson, you mentioned that if a Prime Minister served for eight years or more it would be a turnover of the Senate. What is the difference between a Prime Minister who serves eight years and sees a turnover in the Senate and one who serves perhaps 12 years and has an absolute majority of members that he or she appoints?
Mr. Gibson: One of the essential differences is the disappearance of a certain amount of institutional memory, which is irreplaceable. I can refer to Senator Austin, the dean of the Senate, who has been here for close to 30 years.
Senator Austin: It is 31 now.
Mr. Gibson: With an eight-year term, it is guaranteed that you would never have that kind of institutional memory around this place. I have heard different figures that the current average is eight or 11 years, but that average conceals some long terms which can be useful and also, of course, some short terms.
The more important consideration is that when a senator knows that their term is limited, it changes their incentive and they start to think about future considerations. There is no hint of criticism here. Human nature is such that when this job is over, how will I gain my income after that? That will impact on how one does one's job at the current moment.
The framers of the current Constitution, in my opinion, wanted to remove this idea of future considerations from the minds of senators and therefore gave them a term for life. Whether one agrees today or not that this was a good idea, I do think that it was one of the foundations of our Constitution. It seems to me that to change the existing term would require a full-blown constitutional amendment.
Senator Tkachuk: What is the biggest problem? Is it the fact that some Prime Minister would appoint all the senators within eight years, or that corporate memory is important, or all these other side issues that you bring up are important? Is it a combination of all three of them?
Mr. Gibson: In my mind it is a question of tradeoffs: X years, this selection package, that package of representation of powers from the provinces across the country. Different packages would work in different ways. For example, were the Senate to have only a suspensive veto that would seriously cut into its powers, then one would have to worry far less about all the other things, which I am not recommending, incidentally.
Senator Tkachuk: In the present system, the Prime Minister, if he gets three terms, can have an absolute majority in the Senate by appointing the majority of senators. They have done so in the past. In 1957, Senator Murray reminds me, there were only six Conservative senators. Do you not think that a shortened term, the Prime Minister making appointments for only eight years, would focus the attention of the public more on the Senate appointment process? Let us remove the question of elections, which I think will be the second tier of the Prime Minister's plan, and let us just look at Bill S-4 as it stands alone. Do you not think that there would be more accountability by the Prime Minister to the voters by having short-term appointments for who he appoints to the Senate?
Mr. Gibson: I would like to believe that, but I am afraid my view is that people are so cynical about Senate appointments that they would simply continue to have that degree of cynicism. The shorter term would appear to most people as just so much more patronage for the Prime Minister.
Senator Tkachuk: You do not think it would be the other way around? They are cynical now because, once senators are appointed, they cannot do anything about it. At least if they did not like the Senate appointments, they could throw out the government and get others appointed. Right now, there is no option because they are appointed until age 75. My view would be that the public would be highly interested in who was being appointed and would hold the Prime Minister much more accountable than they do now.
Mr. Gibson: I think that is a good argument on the government side. I personally do not find it sufficient to overcome the difficulties.
Senator Tkachuk: I want to address the question of independence. A retired senator told me that he was asked, ``Senator, you are here until age 75, so why do you always vote with the government?'' He said, ``You have no idea what it is like living in this town when no one speaks to you.'' There is a lot of truth in that. We hear all this talk about independence. In my view, it is a very difficult process, and the question of the party and the caucus and such makes it a very collegial place, and that is important. We are social beings and, therefore, belonging to a group is very important, especially the appointing group.
I do not buy the argument that being appointed until age 75 makes us more independent. It is not that we do not take our regional issues to heart, because we do. However, at the same time, we have our party to consider. Very few bills get stopped by the Senate in its present form; some amendments are made. Perhaps a group of citizens — smart people like you — could review the bills every couple months to ensure that they are properly crafted and possibly hold hearings.
I do not buy the argument the Senate is more independent because we are here until age 75. An eight-year term would make a person much more accountable because that person would have to answer to his community and neighbours about his behaviour in the Senate when he is no longer a senator and returns home.
Mr. Gibson: My argument on the eight-year term was related to section 44 and the perspective that, in my opinion, the Supreme Court might wish to take on it. In terms of the independence issue, I agree with some of your arguments. They are very good. I raised that point particularly with respect to section 44 and the intent of the framers, as I see it.
[Translation]
Senator Dawson: Good morning. I sincerely appreciate the work of the advisory committee from British Columbia, which has confirmed civil society's agreement that change is needed and that such change should be brought, after consultation, to the people.
However, I fear that we may not be able to reach a consensus on the creation of a Canada-wide advisory committee, from Vancouver to Halifax and through the Great North, with the same representation of cultural and linguistic minorities as you had in British Columbia.
Following consultations, there needs to be political will to proceed according to the recommendations of the committee; however, given the conclusions with which I am in agreement, I fail to see how that committee could be efficiently set in motion in the face of power struggles that exist among provincial and federal governments and those between the House of Commons and the Senate. The advisory committee would have to be quite persuasive, which is a difficult ambition to fulfill in Canada, in order to rally all the decision-making entities. We all remember the last attempt at this, that is, the Spicer commission. In that pre-Internet era, we were also bogged down because we had decided to widen the consultation through electronic meetings from Vancouver to Halifax. A Canada-wide advisory committee would today face similar constraints and more.
So, first, how can we ensure the sanctioning by both the provinces and the Canadian Parliament of decisions reached by the citizens' committee we create? Secondly, how can we put such a process in motion so as to be representative of the population?
[English]
Mr. Gibson: I have given a good deal of thought as to whether the British Columbia experiment can be generalized to Canada. You are correct. The cleavages in Canada are larger than the cleavages in British Columbia. I can tell you, however, that with respect to our experience in British Columbia, we had a major cleavage between the large, sparsely populated northern ridings and the lower mainland. It was interesting to see how, within the assembly, people from the lower mainland went out of their way to attempt to accommodate the northerners and how the northerners stood up for their position. That gave me some confidence that there would be internal respect for diversity, and there certainly was in the British Columbia citizens' assembly.
The political will has to be there up front. If the various governments do not have the political will to constitute a citizens' assembly, it will not work. It is as simple as that. The governments have to agree to do it and to abide by the results, assuming the results are verified in a referendum.
How would the assembly itself develop what I call referendum-proof recommendations? I would suggest they have an internal voting mechanism within the assembly itself that would recognize the referendum regions of Canada. Thus, for any proposal to pass the assembly, it would need to have seven and 50, or virtual unanimity, depending on what sort of proposal they were talking about. If they could not get that, the proposal simply would fly and would not come out of the assembly.
In British Columbia, our voting rule was simple majority, 50 per cent plus one. We were quite worried that that rule might have to be used. In the end, it was not. In the end, the vote assenting to the proposed changed system was 146 to 7 in favour. It was an overwhelming consensus due to the fact that people had so painstakingly worked this out and accommodated each other. The runoff vote between the two finalists, which was mixed member proportional and single transferable vote, was also overwhelming. It was four to one — 20 per cent for mixed-member proportional and 80 per cent for the other.
What we saw in British Columbia was the development, once people talked about it and thought about it enough, of quite an overwhelming consensus. If one believes that underneath everything in Canada there exists this community of interest, I would say let us take that shot. If you believe the strains in Canada are too deep to stand this kind of daylight and exposure, it might be a dangerous experiment. You can argue this one both ways.
However, I have to say this about the assembly process — if it fails, it fails. I do not think there are any serious consequences to that; whereas if your Meech Lake type of exercise fails, you do have something serious.
Senator Dawson: That is part of our dilemma. I think there is a consensus that we want changes to happen, and we also believe that we have to have a first step and this might be it. There is a strong belief that there should be a tie-in between the eight-year mandate and an election. If there is not, we have the problem of people possibly being named by one government and having a Senate with no opposition.
However, we have to know where we are heading. The first step is always important but we have to start thinking about what sharing of power will exist. We will be sharing power with the House of Commons. That can be nice. Probably they can debate it around the House of Commons and arrive at some kind of compromise on limiting the power of the second chamber.
However, inevitably, if we are to have more power in the Senate, we will potentially be taking powers away from the provinces. At that stage, the tug of war will not be between the House and the Senate, or between the opposition and the government in the Senate, it will be between the Canadian government and the provinces.
Would you agree that we have to tie in eight years and elections or should we proceed step-by-step? Second, should we start getting a consensus on what kind of power that the Senate should have if we are going to have a new power base for the Senate?
Mr. Gibson: Unfortunately, I believe you have to think about all of these things at the same time.
As far as the transfer of power from the provinces to the central government, you will recall a very interesting development in the United States. Up until 1913, the United States Senate was appointed by the state legislatures. With Constitutional Amendment No. 17, U.S. senators were made elected. That resulted in a distinct increase in the legitimacy of Washington and the central government, and a net transfer of power — because of a transfer of legitimacy — to the centre, which is another thing that people thinking about Senate reform have to worry about, depending on whether they are centralists or decentralists.
Senator Murray: With the limited time remaining, I will make several observations and leave it at that. The witnesses may or may not wish to comment.
First, I want to say a word in defense of the proposed constitutional amendment that Senator Austin and I have put forward.
We acknowledge, of course, that it engages the general amending formula — it requires seven provinces with 50 per cent of the population to approve — but it could not be less similar than it is to Charlottetown.
Who knows why Charlottetown sank? It might have been the distinct society, the inherent right of Aboriginal peoples or the Senate reform proposal — it might have been anything. We do not know why.
This is a discrete, one-off amendment to remedy what we think is a serious inequity. If it goes forward from the Senate to the other players in the process, it is quite conceivable that another consensus might emerge among the provinces. They may want to change the particular numbers that Senator Austin and I have put forward. It would not be difficult to change, whereas you would have had a nightmare if provinces had started to amend Meech Lake after several of them had agreed to it and all the premiers had agreed.
It is one-off and it does address a serious inequity. If we are going to have the status quo, it is impossible to justify a situation in which British Columbia or Alberta has six seats in the Senate. I would like to hear the principled reason why any province would object to increasing the representation of British Columbia and Alberta.
I think it is an important initiative on the Senate's part, if we pass it, and I would like to see how far it goes.
Second, I would like to draw your attention to what I think is a fatal flaw in the process that the government has adopted here. When the Prime Minister was here a few days ago, what he said was, ``Give me Bill S-4, give me this eight-year term for an appointed Senate and then, in the fall sometime, we will bring in legislation.'' That is not a constitutional amendment, but rather simple legislation to create a de facto elected Senate through some sort of consultative process.
Senator Segal was sitting here and he said, ``Prime Minister, supposing all this works and you get this de facto elected Senate with the senators with longer terms than members of the House of Commons, with real power, what will you do about the relationship between the Senate and the House of Commons?'' In other words, what will you do about the powers of this newly legitimatized Senate? The Prime Minister said, ``Oh, on the question of powers, then I will go see the provinces.''
It seems to me that this is leaving hostages to fortune in a big way. Imagine, he will have this powerful Senate and then he will go to the provinces and ask them to help him to curb their powers. Talk about tradeoffs.
It is an open secret that at Meech Lake, Prime Minister Mulroney canvassed the premiers as to whether there was any consensus to abolish the Senate. A few hands went up, but not many. One of them said to me, ``Abolishing the Senate would solve Mulroney's problem, but it will not solve our problem as we see it in the federation,'' so that was the end of it.
Finally, Mr. McCormick, regarding provinces and regions, for purposes of the Senate, Ontario is both a province and region, as is Quebec. As of the regional vetoes — Bill C-110 a few years ago — British Columbia is both a province and a region for purposes of constitutional amendments.
Not only that, I understand that you object to lumping in Alberta with the other Prairie provinces, but I think your objection is more aesthetic than real because with the Regional Vetoes Act, we gave Alberta a de facto veto. Thus we are getting there, away from regions and to provinces.
Mr. McCormick: In a way, you simply made my point that the simplicity of Senate regions, or of the earlier versions of the amending formula regions, is badly frayed around the edges. The only difference between us is that you are willing to work inside the old formula and the old language while actually fixing it so that is not what it is describing at all anymore.
Aesthetically, I want to step back and say, why are we bothering? Why do we have to wear these old clothes? Why can we not wear new ones?
It is a difficult country to work with because the number of units is not particularly large but the range of size is colossal. That is why we keep making the cheap shots about what is wrong with equal representation. California can live with the fact that Nevada has the same number of senators. That was cute, but it proves nothing because there are 50 constituent units in the United States and only 10 here — and in the smaller room, it is a bigger problem.
I agree with your point about incrementalism. In a way, we are doing the easy stuff first in such a way that when we get to the hard stuff, it will be harder, which is not the most logical way to go about it. You should do the large stuff first so that when you get the easy stuff, it is easier. We are doing it exactly the wrong way around. As you move down the road, each question gets harder because of the way you answered the previous one. It is a problem that you keep making it harder.
The gamble we ran when we were trying to keep Triple-E alive was to start electing Senate nominees and maybe keep the ball rolling. The ball would have rolled in such a way as to trap us into a corner. You are getting us out of the corner that our tactic trapped us into, and we should be far more grateful, but that is not how these things work.
You can almost imagine a reformed Senate for Canada that would retain many features of the existing one and still address the different sets of concerns we are bouncing around the room here. However, starting right off the bat with eight-year terms, unilateral prime ministerial appointment, and then seeing the rest of the stuff is a funny first step. There is a difference with a chamber which is overwhelmingly dominated by a government which happens to have been in power for two decades. We have not had, since Sir John A. Macdonald, a Senate that was entirely appointed by a single prime minister so that every single member of the Senate reflected the appointing priorities and the loyalty connections of a single sitting prime minister. This does not sound like a corner we should be rushing to visit as quickly as possible. It sounds like a nightmare for any chamber.
Mr. Gibson: Doing the easy stuff first before you get to the hard stuff and making it even harder — I wish I had said that, and I will.
Senator Hubley: I also welcome you both. I will go back to the concept of regions being dead. That is probably quite true in the Senate as well. I think we have moved well beyond what we think of as regions. Whatever system of reforms we make in the Senate, we need to have a mechanism for representing minorities and representing what I think of as a new definition of region. I am looking to the north, to coastal communities and to areas of a certain economic reality. We may be looking at the forests, if they become threatened. Certainly our north has many issues.
Whatever we do, I do not believe the electoral process we use in the House of Commons will assure Canadians that we will have the voice of all Canadians within its parliamentary system. It is the Senate's role, I believe, to ensure that will happen. I can only say from personal experience that the education of the Canadian people can very often start in the Senate if it has that type of representation because it views the legislation that comes through from the House of Commons and gives special attention to that legislation from its perspective; that is invaluable. Unless the system of reform includes that in some way, we will fall short of the mark. I would like you to comment on that.
Mr. McCormick: That was the one point I wanted to emphasize. The more I read about upper chambers, not just our own but the new ones emerging around the world, the more I believe it must be built around a conscious concept of dual representation. The argument for the Senate is not just sober second thought in case the lower chamber gets it wrong. The argument for the Senate is that the people of the country deserve to be represented in a second way.
The difficulty is becoming conscious of and finding the right modalities for carrying through what that second mode of representation is. If you look around the world, the standard way of doing it is regions and territories, little blocks on a map. Even in non-federal systems, it is still regions or departments or zones of the country you are representing.
The worst impact of Triple-E is that it blurred that point and ran the risk of creating just double, not dual, but double representation. You are doing it twice in two different chambers. You must be careful to avoid that and make clear what it is you are trying to represent. Once you know what you are trying to represent, you can then set up the mechanisms for ensuring that comes through in the new membership. You need to do that first.
I mentioned urban and rural areas and local governments as levels that get left out of the debate. You are mentioning another aspect of the same thing. Many different aspects of Canadian society would be well served by a more conscious system of dual representation. This is the exciting potential of upper chambers when you finally get your mind past thinking they are just Houses of Lords that have not been abolished yet. There is an opportunity to accomplish these things through upper chambers and then to create the appropriate dynamic between them and the House of Commons.
Mr. Gibson: You are absolutely right, senator, the House of Commons type of vote squashes down minority representation. To represent diversity in the Senate, you need to have a different system with a single transferable vote or something, but there is a corollary to that. You would probably have to expand the size of the Senate in order to get the kind of multi-member constituencies that you need to make that type of electoral system work.
[Translation]
Senator Chaput: I will first make a few comments and will ask a short question afterwards. As a senator, I am concerned by Senate reform. The status quo is not an option for me. We are all aware of the perception that Canadians hold with regard to the Senate and that brings us to talk of reform, if only for that reason. We are not elected and we sit until age 75. In the eyes of Canadians, that makes no sense. Again yesterday, we had a witness who told us that the Senate was a laughing stock. In Manitoba, my provincial government, the NPD, does not believe in the Senate. Perhaps an elected Senate would gain credibility.
The government elected to table Bill S-4 in the Senate. If there is conflict of interest, it was imposed on us; so, again, we must study the issue.
I agree with you that it is difficult to study Bill S-4 without the benefit of knowing what will result. My colleague spoke of the electoral process that will be proposed and I have several concerns in this regard. How do we implement an electoral process while maintaining the representation we currently enjoy? Bill S-4 is obviously a delicate issue because we do not know what is down the road and we must take several other factors into account.
If you believe in Senate reform, what would be, in your opinion, the first step to take? Then, how could the concept of public meetings be introduced?
[English]
Mr. Gibson: My response to those questions would be as follows: As to a first step, there is no single first step. They must be intertwined. These things are all so inter-related that they have to be dealt with at the same time. Really, the first thing that must be done is your second thing, namely a process that would be legitimate and works.
Mr. McCormick: It is a standing joke in Canada that Senate reform is the most boring after-dinner speech you can go to. Briefly we were exciting and now we are boring again. The desirable way to go about Senate reform is to have a broader discussion about it, not a small nibble like we have here, although the nibble is tantalizing for those of us who wanted the whole meal anyway. I have trouble explaining to people why they should care about Bill S-4, and it is only because it raises a broader debate, and we need more of that debate at least clear on the horizon. I appreciate that incrementalism is likely the way that we will have to go and that there is a sequence to these processes. At the moment, the nibble is too small and far too much of it is out of sight. It is not being tied to a more comprehensive package that could inspire enthusiasm. Therefore, it has the look of a lightning raid, either a publicity triumph or a power grab. If step two never materializes, then this bill is a power grab of the highest order. If step two is honestly intended, then this is a publicity bite and step two will be its own publicity bite, and that is fine because if that is how politicians make progress, then so be it. For now, I am left with that worry. I see in front of me only a power grab that will damage the Senate across any reasonable run rather than help it. Unless more steps follow, and we all know the uncertainties of politics in Canada, it will go down in the history books as a power grab. Everyone will say how sneaky it was of the PMO to augment its power in such a casual way. I hope that will not happen. I do not think that is the intention of the Prime Minister. We can all run scenarios that would have that outcome.
Senator Watt: What would you recommend that the Senate do in respect of the creation of a citizen assembly? Would it be timely for the Senate to introduce that concept to generate public discussions, perhaps by way of a private member's bill in the Senate? How could that best be done because we would have to begin somewhere?
Mr. Gibson: Certainly, the Senate could give the idea a great deal of respectability and impetus should senators consider that issue. I presume the Senate leadership would consult with the House of Commons leadership and with the provinces on the issue to determine the introduction of a bill to that effect. Certainly, the issue could be considered at a Senate committee that held hearings across the country without any consultation at all. It is an interesting idea of the sort that the Senate was put together to explore.
Senator Watt: Is it your opinion that sooner would be better to begin public discussions on this?
Mr. Gibson: Yes, particularly now that the issue has been raised. The government quite properly feels that now that it has raised the issue, it should be addressed, and this is one way of doing that.
The Chairman: There is an economic theory that is called ``creative destruction,'' I believe, such that things are made so bad that a remedy must follow. Some journalists think that this approach would be of value in the context of Senate reform. It contrasts nicely with the phrase in the Hippocratic oath, ``first, do no harm.'' Could you express an opinion on such a theory?
Mr. McCormick: If you are not supremely careful about that kind of process, you never discover how much you truly needed it until you have finished smashing it to smithereens. I describe that to my students as the ``oops syndrome.'' Political institutions take a long time to build properly and get working, but they are incredibly easy to smash. It might be a fun lecture to give once only in one of my classes but I would not want to push it further than that.
Mr. Gibson: I believe it was the economist Joseph Schumpeter who came up with the phrase ``creative destruction'' and that the reference was to individual firms; he was not taking apart the whole economy. The politician who was the greatest champion of that idea was Vladimir Lenin, who believed that they had to make things worse to inspire their revolution, which they had, of course. I agree with Mr. McCormick: whatever happens, the current Senate works. Improve it by all means, but do not make it worse.
The Chairman: Perhaps it is inappropriate to put this question because we are out of time and our next panel of witnesses is waiting. However, the committee might want to explore, in the course of doing its report, the way in which a system of proportional representation might work with a distribution of seats in the Senate, perhaps along the lines of the Murray-Austin motion.
Do you think there would be room for a single, transferable vote system to work with as few seats as would be in the various provinces, assuming the Murray-Austin motion were passed and we were left with the three territories with single seats? Could that work? Mr. Gibson, you have had the most experience in this area and a brief comment would be appreciated.
Mr. Gibson: Certainly, you would have to bump your territorial representation because you could not get any proportionality out of one seat; you would have to bump that to at least two seats. The other small problem would be Prince Edward Island. If you had staggered terms, you could have elections of two people each in each term. That is not fatal in Prince Edward Island because it is quite a homogeneous society. In the larger provinces, you would have at least three in each election, assuming staggered terms, which is a good idea. That would be sufficient to give you a degree of proportionality. In the larger provinces, there would not be a problem at all.
Senator Tkachuk: I would like clarification on a comment. Mr. McCormick, you mentioned that the eight-year tenure would be seen as a power grab. Were you meaning a grab by the institution of the Prime Minister or by the Prime Minister?
Mr. McCormick: The net effect of Bill S-4, if the second step never materializes, would be to augment the power of the Office of the Prime Minister. Unless the second step materializes to limit the appointment power of the Prime Minister, there will have been a net gain. First, the Prime Minister could appoint more senators and second, his appointees could take over sooner rather than later.
Senator Tkachuk: In other words, current senators are all grandfathered.
Mr. McCormick: I agree.
The Chairman: I appreciate the patience of the witnesses and all concerned. This has been a helpful session.
I am pleased to welcome our next witness, Dr. Peter Hogg, scholar in residence with Blake, Cassels and Graydon.
Peter Hogg, Scholar in Residence, Blake, Cassels and Graydon, As an individual: Thank you very much. I have given the committee a submission that I believe has been translated into French. Everybody should have the burden of my submissions. I have also given to the clerk of the committee a curriculum vitae.
I will address the constitutionality of the two measures. I do not profess to be an expert on the merits of Senate reform, but I hope to be able to add something on the constitutional issues.
As far as Bill S-4 is concerned, it seems to me that under section 44 of the Constitution Act, 1982, Parliament has the power to make laws in relation to the Senate except for four matters. You have heard all of this before, but let me just quickly walk through them.
Under section 44, the powers of the Senate cannot be touched; the method of selecting senators cannot be touched; the number of members by which a province is entitled to be represented cannot be touched; and the residence qualifications of senators cannot be touched.
Since Bill S-4 makes no change in any of those four matters, which require the full 7-50 amending formula, it comes within section 44 and, if enacted, it would be valid as a law in relation to the Senate. Therefore, I say that it is authorized under section 44 of the Constitution Act, 1982.
I notice that section 47 of the Constitution Act, 1982, which you will recall is the provision for bypassing the Senate for constitutional amendments, does not apply to amendments adopted under section 44. Therefore, the Senate must approve Bill S-4 if it is to pass into law.
That might be one answer to concerns I read in earlier testimony that the government might propose unreasonably short terms for senators. One answer to that perhaps is that the Senate would have to agree to whatever was proposed.
I want to speak briefly about the Upper House Reference, the decision in 1980, which I know was mentioned in some of the earlier testimony. Members of the committee will recall that the Supreme Court of Canada in that 1980 decision said that the then unilateral federal Parliament amending power would not extend to the fundamental features or the essential characteristics of the Senate. That case was decided in 1980, so it was decided before the new amending provisions of the Constitution Act, 1982.
It seems to me that the best interpretation of what happened in 1982 was that it overtook the ruling in the Upper House Reference. In other words, the 1982 amending procedures now say explicitly which changes to the Senate cannot be accomplished unilaterally by the Parliament of Canada; they are the four matters in section 42 that I mentioned earlier. Other aspects of the Senate can be changed under section 44.
I have thought about the argument, which I detected in some of the questions of senators in the earlier testimony, that perhaps we should read section 44 as not extending to fundamental or essential changes. It is unlikely that a court would read section 44 that way. A court would more likely say that we have made explicit the provisions that are sufficiently fundamental or essential that they require the full amending formula and they are the four matters addressed in section 42. I do not think a court will say that subtracted from the power under section 44 are not only the four matters listed in section 42, but also fundamental or essential changes. That would be an odd way of reading the provisions, I think.
What I am saying is that since 1982, the matters listed in section 42 are the fundamental or essential features that cannot be changed unilaterally. Term limits for senators are not among those matters. I say they can be legislated under section 44. My conclusion is that the Parliament of Canada does have the power under section 44 to enact term limits for senators.
The motion to increase western representation in the Senate is one of the matters caught by section 42, which requires the use of the general amending procedure, because it deals with the number of members by which a province is entitled to be represented in the Senate. That is one of the things listed in section 42 as requiring the 7-50 formula.
Section 42 requires that the change be enacted by the 7-50 formula stipulated by section 38; however, the required resolution, according to section 46 of the Constitution Act, may be initiated by the Senate. Therefore, the motion is a lawful one, although obviously, it will not yield an actual amendment until it has been passed by the House of Commons and then by seven provincial legislative assemblies representing at least 50 per cent of the population of the provinces.
I assume that a Regional Veto Act would also apply to this resolution if it were introduced into the House of Commons by a minister. If a minister were to introduce the resolution into the House of Commons, then we would have the stipulations of a Regional Veto Act to comply with as well; that requires Ontario, Quebec, British Columbia, two or more Atlantic provinces and two or more prairie provinces. However, presumably, if the resolution were introduced into the House of Commons by a member of Parliament who was not a minister, a regional veto act would not apply and that overlay of regional requirements would be avoided.
My conclusion on the constitutional resolution is that every journey starts with a single step and there is no doubt that the passage by the Senate of the motion under consideration will be a valid first step in securing the desired amendment to the various provisions of the Constitution Act that deal with representation.
Mr. Chairman, that concludes my submissions.
Senator Austin: First, I would like to make a preliminary comment. The Prime Minister, when he spoke here, told us that Bill S-4 was part of and only part of a process of Senate reform that would include an electoral process of some kind. He did not define it for us. He said it was under consideration.
I am interested in your comment as it affects that method of selection. You are clear that section 42 would exclude the creation of an electoral process without the 7-50 formula. You are clear about that and I do not think anyone I have heard so far would dispute it. The Prime Minister, however, is not proposing to introduce legislation with respect to electing senators, which would be in the nature of a constitutional amendment. He has also made that clear. He said he would introduce some form of federal legislation.
I am wondering, given the provisions of section 42(1)(h), of the Constitution Act, would you advise us that the Prime Minister could do indirectly what section 42(1)(h) says he cannot do or would you see it simply that the Prime Minister can consult in any way with anyone he wishes, to do anything he wishes with respect to appointing senators? Would you give us your views on that dichotomy?
Mr. Hogg: I read the Prime Minister's testimony with some care because I was concerned that if this particular measure was simply an essential part of a package that would lead to the election of senators, then that might drag us back into section 42 and thereby render the initiative unconstitutional.
Senator Austin: I was going to take you there in my next question.
Mr. Hogg: You can bring me back if I lose the thrust of your main question.
I paid particular attention to the point in which the Prime Minister said that this particular change does stand or fall on its own merits. I have been approaching this matter on the basis that what is proposed is to introduce an eight-year term for future Senate appointments, that it may become a step toward an elected Senate but it may not. It is a measure that stands on its own two feet. On that basis, Bill S-4 is not doing indirectly what cannot be done directly. The only thing it is doing is something it can do; namely, impose term limits on senators.
Senator Austin: It is the next piece of legislation, which is promised by the Prime Minister this fall, that may do indirectly what he cannot do directly by unilateral means. What we are seeing here is a scheme — and I do not mean that in a negative sense — of Senate reform or a process that may necessarily work because it is the Prime Minister's intention to have two parts — Bill S-4 and some other form.
My question is directed to you not on policy but on the Constitution. As a constitutional lawyer, would you not want to see more of the whole scheme before advising us that we should proceed with Bill S-4?
Mr. Hogg: I do not think I need to take that position. We are told by the government that Bill S-4 does stand on its own two feet. We know from the vagaries of politics that there may or may not be a second step, so it seems to me that the first step is valid.
I agree with you entirely that we will have to look with great care at the second step because the question will be whether it changes section 24 of the Constitution Act, 1867, which says that the Governor General shall from time to time summon qualified persons to the Senate. The implication of that, of course, is that the Prime Minister would provide the advice to the Governor General.
Senator Austin: As an aside, I was thinking of your testimony and imagining certain circumstances, which we lawyers try to do — the permutations and combinations of odd events just to test the thesis. I thought to myself, what happens if we pass Bill S-4 and Prime Minister Harper appoints senators, and then the following occurs? We have an election and a Liberal Prime Minister takes office. One or more of those senators appointed under Bill S-4 then commences an action for a constitutional declaration that Bill S-4 is unconstitutional, with the objective, of course, of serving out a longer term. This would be a 45-year-old person serving out a term to 75. It is not inconceivable that an event like that could happen if we do not know in advance whether this legislation is constitutional.
Mr. Hogg: I think it does come back to the same point that we are not being told — I have no inside knowledge and know only what I have read in the testimony and read in the paper — that this is a step which is relevant only for the movement to election. As long as it is a free-standing reform that can be defended on its own merits, I think the hypothetical proceeding that you imagine would be unsuccessful.
Senator Angus: Mr. Hogg, I am intrigued by your appellation at your firm, scholar in residence. The chairman and I are very part-time senators in residence at our law firms. I would be interested in knowing if you deal largely, or only, with constitutional matters?
Mr. Hogg: I deal a lot with constitutional matters. The law of trusts is another field of mine that has penetrated many areas of practice. The firm also leaves me the time to continue with my writing. I am producing a new edition of my constitutional law book as we speak, so I have a nice mixture of things — some practice and some academic work.
Senator Angus: Are you a partner at the firm?
Mr. Hogg: No.
Senator Angus: I gather this is a form of counsel; is that right?
Mr. Hogg: Yes.
Senator Angus: Am I correct in recalling that when the last Supreme Court justice was appointed, you agreed to assist the government in the review process that took place?
Mr. Hogg: Yes. I was retained by the Office of the Commissioner for Federal Judicial Affairs to help prepare the judge for the hearing and then to give advice to the committee as to the limits of questioning that were appropriate. That was a very interesting assignment.
Senator Angus: It was an interesting process, which was part of this government's desire to become more open and to modernize some of these elements of our democracy. Now we are wrestling with this issue, and I am glad to know that you are of the view that Bill S-4, on its face, is within the legislative authority of this Parliament.
Did I understand you to say that you have not given an opinion to the government? Are you totally independent on this one?
Mr. Hogg: That is correct. I have not been retained by the government or anyone else on this issue.
Senator Angus: It is helpful to our committee to have your opinion.
Are there any other elements that you can think of that would constitute reform of the Senate, such as that contained in Bill S-4, which would be within the competence of Parliament? Are there other things we can do without having to have a full-blown constitutional amendment process?
Mr. Hogg: I have not thought through that. One answer, which is not helpful, is to say that you can do absolutely anything with the Senate — according to my theory of how section 44 sits with section 42 — as long as it is not one of the four things enumerated in section 42. As long as does not affect the powers of the Senate, does not affect the method of selecting senators, does not affect the number of members by which a province is entitled to be represented and does not affect the residence qualifications of senators, you are free to do anything else. What those other things might be, I am not sure.
Senator Angus: For example, today senators are appointed by Governor-in-Council on the advice of the Prime Minister and at the sole discretion of the Prime Minister; is that correct?
Mr. Hogg: Yes.
Senator Angus: Some witnesses have said that one of the mysteries of our parliamentary democracy is how the prime ministers of the day appointed all of us, for example. They have gone through some kind of process in their own minds and their own people. If this Parliament were to decide on a process of creating a pool of individuals from whom the Prime Minister can choose and appoint still by Governor in Council, would that be constitutional? Could that be done?
Mr. Hogg: I think the answer to that is yes. The precedent I am thinking of is when Prime Minister Mulroney appointed Senator Waters not long after the Meech Lake Accord. It was contemplated in the Meech Lake Accord that there would be a period before it was brought into force. Of course, it never was brought into force, and Senator Waters had been elected in Alberta.
If the Prime Minister chose to feel bound to pick the elected person while not being legally bound to do so because the Constitution had not changed or limited his discretion in any way, I do not see any constitutional problem with that.
Senator Angus: That is what I was getting at. The key words in your answer are ``without being legally bound.'' In other words, the Constitution today provides for appointment by the Governor in Council on the advice of the Prime Minister, and a new process for creating a body of people that might be a little more accountable, at least, on the face of it, to the electorate, to the citizens of Canada than the mysterious process that prevails, would be within the competence of Parliament as long as it was not obligatory.
Mr. Hogg: I think I said the same thing to Senator Austin. If the second step legislation dealing with the elections legally fetters the Prime Minister's discretion by requiring him to select the elected person, then I think we would have crossed the path and made a change to section 29, and that would be unconstitutional as a piece of legislation. If the legislation does not fetter the Prime Minister's discretion at all but simply provides a pool of people from which he can select, it is probably all right. I still use the world ``probably'' because —
Senator Angus: It is green fields.
Mr. Hogg: It is green fields. I have not thought it through completely, but the legislation providing for elections must stem from one of the powers of the Parliament of Canada. Even if it does not fetter his discretion, it will be legislation that will require the expenditure of money, the holding of an election, et cetera. I suppose a power can be found for that. I would not want to rely on section 44, but perhaps peace, order and good government is where we end off. The residual issue when the second piece of legislation comes forward is the constitutional authority for that second piece of legislation.
Senator Angus: The Prime Minister made his statements about the reason for the vacancies in the Senate, and there are now nine, 10 or 11. There will be another one coming up very shortly. Is there a point at which the Prime Minister is breaching his constitutional obligation as Prime Minister by not filling the vacancies?
Mr. Hogg: There certainly is not any case law that has imposed on governments a requirement to, for example, hold by-elections within a certain period of time. Often those are delayed for reasons that are hard to understand. Governments are often dilatory about making appointments to various bodies and boards. It would be difficult to construct a type of reasonable time rule that could be legally applied. No court has ever done that. As distressing as it must be to see your numbers fading away, there probably is no legal remedy for that.
Senator Angus: When Prime Ministers are sworn in, one of the things they do is undertake to uphold the Constitution of Canada faithfully. The Constitution provides that there shall be a Senate and it shall be composed of a certain number of senators. When it gets down to 90 or 85, it seems to me an argument can be made that he has a constitutional obligation to fill those vacancies.
Senator Tkachuk: Certainly many Conservatives will be making that argument.
Mr. Hogg: I think an argument can be made, but I do not think there is a strong legal basis for that argument. A court would be very reluctant to develop guidelines for executive appointments, which are very much issues of policy for government. I suspect that a court would not interfere with that, even though I fully understand the point you are making, senator.
Senator Angus: It is on the table.
The Chairman: Before going to Senator Watt followed by Senator Murray, I would like to ask a supplemental question to Senator Angus's line of questioning. It touches on section 24 of the Constitution Act, which you quoted a moment ago. It provides for the Governor General to appoint or to name the senators.
To the best of my knowledge, the basis on which the Prime Minister holds a prerogative in this area is a 1935 order in council which listed the prerogatives of the Prime Minister to appoint ministers, deputy ministers, chief justices and so on, including senators. There is an 1896 order in council which apparently touches on the same thing but I have not been able to find it. The 1935 order, signed on behalf of the Governor General in council, seems to stand to this day as the basis for the Prime Minister's prerogative.
Is there room in section 24 to change the entity? I believe the Governor General would be one obvious possibility, but is there something less than that and other than the Prime Minister in terms of a prerogative being given to an entity? There could be an appointments commission or somebody who would take advice through a permissive process conducted by the provinces or by some entity of Parliament, for example.
Mr. Hogg: Senator, that idea would count as an amendment of section 24. I say that because there are many references, as you know, to the Governor General scattered through the Constitution Act, 1867 and in the Constitution Act, 1982.
They are there because of the conventions of responsible government, and one of the conventions of responsible government, even without the order in council to which you referred, would be the Prime Minister's function to provide advice to the Governor General, because we would not leave the Governor General to make decisions by herself. She can only act on the advice of the Prime Minister under our notions of responsible government.
If we were to change the way in which the advice is developed and given to the Governor General, it would constitute a change to section 24. Section 24 incorporates the rules of responsible government that turn section 24 into an acceptable democratic provision and not just an autocratic, monarchical ability to pick members of the upper house.
The Chairman: If a prime minister attempted to delegate that in the way that I described, do you believe that it would be caught, in terms of the conventions you described, in a way that would involve an amendment to section 24?
Mr. Hogg: Yes.
Senator Watt: As you are probably aware, I am from the North. I will try to condense my concerns. Northerners always have a great deal of difficulty voicing their opinions and being heard in the rest of Canada, especially on the matter of climate change in the Arctic, where we are witnessing things that have never been seen before. For that reason, I am looking for ways that we can increase our representation in the House of Commons. I believe that some reform must take place not only in the Senate, but also in the House of Commons. Currently, we are dealing with only Senate reform and so I will try to restrict myself to that. I understand the four items you mentioned in respect of the amending formula. Section 44 overrides and does not touch upon sections 41, 42 and 43, as you described.
Mr. Hogg: Yes.
Senator Watt: If that were the case and if Bill S-4 were deemed constitutional, it would still allow the Prime Minister to make additional appointments if there is a need. If a region or a group of people with common interests could also be dealt with if the Prime Minister was to deem it necessary to increase seats in the Senate. Under a new process, would it be possible for the Prime Minister to appoint Inuit, for example, from the four northern regions by classifying them as guaranteed seats?
I am a senator who represents the people in the north. I have no guarantee that when the time comes I will be replaced by an Aboriginal person with the same knowledge. Instead, I could be replaced with a person from a different culture. Could you enlighten me on that concern? How do I deal with such a predicament? I have been combating proposed and existing legislation for 23 years that, at times, has a great deal of reverse economic, social and cultural impact on northerners. Rather than advancing us, it has regressed us. This must stop. I am trying to find a solution to this problem, which is not good for the country or for northerners.
Mr. Hogg: Senator Watt, if I am not meeting your question, come back to me and clarify what I have missed.
A prime minister is restricted by the number of senators for each region, which is established by law and the prime minister cannot change that. In addition, a prime minister cannot secure the enactment of a law that would fetter the existing power in section 29 to make appointments to the Senate. That leaves a prime minister with the discretion to pick someone when a vacancy comes forward. I see no reason why a prime minister could not adopt a non-binding policy that Aboriginal persons would be summoned to the Senate in sufficient numbers from those areas of the country where there is heavy representation of Aboriginal people.
I do not see any reason why there could not be an informal understanding of that kind, falling short of a legal obligation. Nevertheless, an informal understanding of that kind might work well.
Senator Watt: Two other areas also concern me. The people who live on the coast make a living off the coast by fishing, et cetera. I have been part of the fishing community for quite a number of years and I have watched the tendency of the government to move forward without proper consultation with those who need the economy just to stay alive or to grow.
I imagine the matter of representation would apply to the people living on the coast as well because they are underrepresented. The use of the word ``region'' is passé. I do not think we should forget about where we came from and what makes this country survive. If we forget about our past, we will not lead our country in the right direction. Certainly, our politicians will never know who they are.
The people living in Quebec have a tendency to want to do things their own way. As an example, they enacted a language law to protect the French language. There are many people living outside of Quebec who also need protection. They require services in their communities that, according to the law and the way I understand it, are supposed to be provided. However, we have learned over time that they are not provided with the kinds of services that they originally expected.
Senator Murray: Professor Hogg, you have been extremely generous and helpful to parliamentary committees in the past and to governments and officials and ministers. We appreciate you coming here on this issue today.
Mr. Hogg: Thank you.
Senator Murray: I have a couple of fairly quick questions. First, do you agree with our previous witnesses that it will take unanimity to abolish the Senate?
Mr. Hogg: That is an issue I have not thought through.
Senator Murray: We can wait.
Mr. Hogg: Can I let it percolate for a while? Just as a preliminary point, I would say that issue is not listed in section 41, the unanimity requirement. The only references to the Senate are in section 42, the 7-50 requirement. It is true that section 42 does not contemplate abolition.
Let me give you a tentative answer, bearing in mind it is not well thought through. The default position, if you like, is the 7-50 formula. That is reinforced by the references to the Senate in section 42 which, of course, references the 7-50 formula.
I would be inclined to think that we would limit unanimity to the five matters listed in section 41. If that were the case, then the Senate could be abolished under the 7-50 formula. I would like to rethink that answer, particularly if you had a different view, Senator Murray; I would wonder whether I was right.
Senator Murray: On another matter, Professor Hogg, when you were speaking about the process under 7-50 with the Senate, the House of Commons and then seven provinces, I just want to confirm that there is no preordained order in which this needs to be done. We think we are about to pass a constitutional amendment proposal and that it will go to the provinces and arguably the federal government can make up its mind on the basis of what level of consensus there was among the provinces before they decided what to do.
Mr. Hogg: I am sure that is correct.
Senator Murray: You have indicated that it is probably all right that the federal draftsmen can probably draft a valid law to hold a consultative senatorial election. What do you say about provincial laws that purport to do this? Senator Waters was appointed following an election in Alberta held under provincial statute and Alberta is strongly of the view, as repeated yesterday by its minister, that senatorial consultative elections must be on a province-by-province basis and not on a national process, which I think is the direction Mr. Harper is going.
Even if they had to go for peace, order and good government, the federal drafters could probably draft a valid law. Under what head of power could provinces have a law for a consultative election?
Mr. Hogg: That is quite a difficult question. On the face of it, it seems to be a law in relation to federal institution over which they have no authority.
Again, this is another question I have not thought through. Provinces can provide for referenda and measures to consult people. It may be that a province could design something that is a consultation, but does not bind anyone to do anything, even though it yields somebody who, they hope, will be appointed to the Senate.
I do not know the answer to the question. I think the constitutionality of the provincial law providing for an election is something that would be worth a review. It is not obvious to me.
Senator Murray: Did you take a look at the Alberta law?
Mr. Hogg: No, I have not seen the Alberta law.
Senator Murray: It is worth doing.
I will not be here tomorrow to ask your friend, Professor Monahan, about the statement in his book, Constitutional Law, talking about section 44. He says that section 44 was intended to replace section 91(1) of the Constitution Act, 1867. He says that section 91(1) was construed in an extremely narrow fashion by the Supreme Court of Canada in the Senate reference. Then he goes on to say that the drafters of the new federal amending power were attempting to codify the Supreme Court's analysis in the Senate reference.
Do you agree with that?
Mr. Hogg: I do agree with that, although I did not realize that was in his book.
Senator Murray: They could not have codified what the court said in 1980 about tenure because, as you pointed out in your brief, what the court said was that it depends. They said that at some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as a sober second thought in legislation. To answer the question, we need to know what change of tenure is proposed.
If Professor Monahan is right, then the issue in a reference, it seems to me, would be whether a change from age 75 to an eight-year fixed term is mere housekeeping, as the Supreme Court talked about in section 91(1) or whether it is a more fundamental change.
Mr. Hogg: What I tried to say in my testimony, and it is in my written testimony as well, is that it is hard to imagine the court saying that the section 44 power to make laws in relation to the Senate is subject not only to the four things explicitly subtracted from it in section 42, but also to matters that the Senate reference referred to as ``fundamental matters.'' It seems more plausible to me, at least — and I do not say this is compelling — to take Monahan's view that what they decided to do was to take the rather vague language of the Supreme Court and crystallize those matters that really could not be done unilaterally. They put the four of those in section 42. The corollary of that was everything was left in section 44.
You are quite right, the drafter did not follow the suggestions that the Supreme Court of Canada made about term limits for senators, because on the argument that I am making you would expect to see those in section 42 as well, but they are not there.
I think the better reading, and I am not saying this out of any loyalty to Monaghan —
Senator Murray: He is coming to argue, as you do, that it is a section 44 item.
Mr. Hogg: Yes. I think he is right and that way of expressing it is correct.
Senator Murray: I will not have a chance to confront him on his earlier statement and I regret that.
Mr. Hogg: I will pass on to him your desire to do that.
Senator Murray: I want to ask you about the Supreme Court. You will remember in 1960 when the Diefenbaker government addressed Westminster to set a retirement age of 75 for the superior, district and county courts. Mr. Diefenbaker secured unanimous consent of the provinces before doing that; that was pre-1982.
I think it was 1927 that Supreme Court of Canada judges had their retirement age fixed at 75. That would have been done by Parliament, I suppose, in an amendment to the Supreme Court Act. Have you thought about what Parliament might be able to do with the tenure of members of the Supreme Court of Canada now? Would it be valid to set a fixed term of eight years or 10 years, or reduce the retirement age to 65?
Mr. Hogg: The Constitution is not very clear about the Supreme Court of Canada. There are references in section 41 to the composition of the Supreme Court of Canada.
However, the Supreme Court of Canada is nowhere in the Constitution of Canada. It is simply, as you said, a Supreme Court Act that was passed under section 101 of the Constitution Act, 1867, which allows Parliament to provide for the ``Constitution, Maintenance and Organization of a General Court of Appeal for Canada.''
If you looked at section 101 alone, you would probably conclude that just as Parliament could provide a retirement age for Supreme Court of Canada judges, it could provide for term limits for Supreme Court of Canada judges.
I say that is the conclusion you might reach if you look at section 101 alone. As you know, the Supreme Court has developed some unwritten principles of constitutional law. Some of us do not like unwritten principles of constitutional law, but the judges do like them. One of them is the independence of the judiciary.
I think many of the arguments about the independence of the judiciary are completely fanciful, but the court does not always agree with me. There would be an argument that going to term limits for Supreme Court judges might impair their independence since they would have to think of what they were going to do in a future life at the same time as they were deciding cases. To my mind, that would not affect their judgment at all, but the argument will still be made that it might impair judicial independence and breach a principle of judicial independence.
Senator Murray: That might also be made for senators.
Mr. Hogg: Yes. It seems to me, though, that the Senate is an independent body in a different sense than a judge is supposed to be independent. Senators have political affiliations; there is nothing wrong with a senator voting for the party with which he or she is affiliated. I do not find the independence argument with respect to judges to be very strong, but I do not find it to be strong with respect to the Senate either.
The Chairman: You would not have any problem finding renewable terms for judges caught by the unwritten provision that the court has brought forward on its independence.
Mr. Hogg: Renewable provisions are getting difficult because it rests with the discretion of the government whether or not to renew a judge's appointment. Even there, it is probably fanciful to imagine that judges really would change their decisions in order to improve their chances of reappointment. However, a renewable appointment would be a more severe test of independence than would a simple term limit.
The Chairman: As I understand your earlier comments, you take the position that it would not be open to the government to take Bill S-4 as an initiative under section 42 to get around the veto of the Senate. In other words, as a section 44 change — housekeeping, if you want to use the language of the Supreme Court reference, which I guess is now passé — under section 44, clearly the power of the Senate is as it is with all other legislation; it is restricted under section 42 matters. Can the government shop this, that is, use a cafeteria approach — the Senate will not pass it but we will go to the provinces to get the amendment in place? I think you said that this could not be done.
Mr. Hogg: Are you asking me whether a law that I say is competent under section 44 could be enacted under a higher amending power than section 44?
The Chairman: You are getting ahead of me. I was going to come to abolition ultimately and to which is the higher authority, section 44 or sections 42 and 38 together, in terms of ending the Senate. I think there at least is an argument that, having put aside the word ``housekeeping,'' this is a change — the abolition of the Senate — which can also be incorporated into section 44.
Your reading of the Constitution is that the 7-50 rule covers precisely the things in section 42 and only the things in section 42. Therefore, the rest must fall under section 44. I was going to get to that, but before I do, can the government shop this initiative — either take Bill S-4 as a section 44 or a section 42? Does it have that choice?
Mr. Hogg: Obviously, there is a respectable point of view, as articulated by Senator Murray, that you may be in section 42 anyway because it is a fundamental change in terms of the Senate reference. I do not agree with that; but if one did take that view, then presumably you would need the 7-50 procedure because you would be outside of section 44.
If you agreed with me that it falls within section 44, I do not see any difficulty in taking it to the provinces. That would be otiose, according to my theory, because they would not need to agree. However, would there be any impediment to doing so if the government wanted to do so? I do not think so.
The Chairman: It simply could have gone to the provinces with Bill S-4 and not bothered with an attempt under section 44, if it had wanted to; is that correct? I just want to make sure I understand you.
Mr. Hogg: I am not sure I understand you. If you are saying that the Government of Canada could have first consulted the provinces on Bill S-4 before the bill was introduced in the Senate, I do not see any reason why not.
The Chairman: Had the government done that and introduced it in the House — because it would have consulted the provinces and met the test of Bill C-110 — passed it in the House and sent it to the Senate, the Senate would have had only a six-month suspensive veto on the matter, assuming the provinces gave the necessary approvals.
Mr. Hogg: That would then depend on what is the correct characterization of the amendment. If the correct legal characterization is, as I say, that it is a section 44 matter, then the suspensive veto for the Senate does not apply and the Senate would have to be a party to the —
The Chairman: I think that is what you said in the beginning, if I understood you correctly.
The next question is this: If it is part of a larger package that does require section 42, then would that be the route to go?
Mr. Hogg: Yes. This is the thought I was trying to articulate earlier on with Senator Austin. If this was simply an essential part of a larger package that was a section 42 matter, then that would take it outside of section 44.
The only comment I can make is that I did look carefully at the testimony of the Prime Minister and the preamble to the bill as well. Although the preamble is not terribly illuminating, it certainly does not imply that it is simply part of a larger package; and, of course, the Prime Minister was explicit that this was a reform which stood on its own merits.
My testimony has been premised on that assumption. However, I recognize that if it really were simply part and parcel of a single ball of wax that was a section 42 matter, then it could not be done under section 44.
Senator Fraser: Being neither a lawyer nor a former constitutional minister nor anything learned in these grounds, I was fascinated by the discussion arising out of Senator Angus's question as to whether there is a constitutional obligation to fill Senate seats at some point.
I went back to the Constitution Act, 1867, which states in section 32:
When a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.
Would that not suggest, subject to the normal delays with which we are all familiar in filling a certain proportion of the seats, that at some point those seats must be filled and that you cannot let the vacancies pile up and pile up?
Mr. Hogg: That is a fair point. It does say ``shall'' appoint to fill the vacancy. The issue that we have never faced is we have never had, as far as I know, a government say, ``I am not going to fill these vacancies.''
Senator Fraser: We have one now.
Mr. Hogg: To get back to my response to Senator Angus, I think that a court would be very reluctant to stipulate any kind of time frame for these kinds of appointments because we know that appointments are often delayed for a variety of political reasons. Courts would be reluctant to issue an injunction to a government to force them to fill appointments.
I suppose that if there was an absolutely unequivocal statement by the government of the day that it was not going to fill vacancies, then perhaps that might be a matter that could be brought before a court. That would be akin to changing the Constitution.
Senator Fraser: I was wondering in particular what would happen, for example, if, through the normal occurrence of vacancies, a province found itself with no senators. Then surely one would be in a state of constitutional wrong, would one not?
Mr. Hogg: Yes. Again, it seems to me that if a province found itself with no senators and it was simply the result of relatively normal delays in making appointments, I do not think there would be any remedy. If, on the other hand, the government of the day said, ``We are sick of having senators from Prince Edward Island, so we are not going to appoint any more,'' that might well be a breach of section 32.
You are quite right that I was not clear enough and was too unequivocal in answering Senator Angus's questions. There may well be a case for a court in extreme cases where the government has made it clear it simply is not going to make appointments.
Senator Fraser: Even if a court does not act, this would still suggest an obligation.
Mr. Hogg: There is certainly a moral and political obligation.
Senator Austin: I will pick up, as I promised, on the subject that Senator Fraser, Senator Angus and Senator Murray have been pursuing, because it is seminal to our consideration of Bill S-4.
I liked the phrase you used, ``in extreme cases.'' I would like to examine with you where you find the law that permits the court to do things in extreme cases. Surely you find it in the law of constitutional convention because there is no written law that says, ``In extreme cases, such and such shall result.''
You have admitted, I believe, that there is conventional and constitutional law, but the issue is where and what conventional and constitutional law. Can I take you that far?
Mr. Hogg: In my response to Senator Fraser, I was not thinking particularly of conventions. I was really focussing on the word ``shall'' in section 32 and drawing a distinction between the normal political delays, which we have grown accustomed to endure from governments of all stripes and where I say a court would be unlikely to want to intervene, and a clear case of a government announcing that it would not make appointments. I say then there would be an argument that the word ``shall'' in section 32 has not been complied with. I am not relying on a convention when I say that is such an extreme case that it could be a breach of section 32.
Senator Austin: Let me test you in terms of judicial independence that Senator Murray referred to. The Supreme Court of Canada Act is an act by Parliament. Parliament can remove that act and abolish the Supreme Court of Canada. Would there be any constitutional limits that you could find on the abolition of the Supreme Court of Canada? Otherwise, your strict construction permits Parliament to make an essential change to the way in which our Constitution has operated since 1874, I believe.
Mr. Hogg: To give a similar reply as I gave to Senator Murray, of course we did not have a Supreme Court of Canada in 1867 when the nation was first formed. I think the Supreme Court Act was enacted in 1875, so for that period we had no Supreme Court of Canada. Theoretically, acting under section 101, we could go back to the early years of Confederation and cease to have a Supreme Court of Canada.
There are two problems with that. First, the Supreme Court of Canada is mentioned in section 41, and it is a mention that is a bit obscure. Of course, section 41 is the unanimity provision, and it lists the composition of the Supreme Court of Canada there, suggesting that even though the Supreme Court is a purely statutory body, there is some degree of constitutional protection for it. As I say, it is not very easy to understand that reference, but it is there and I think that would be a problem.
A second problem might be this unwritten rule of judicial independence which the Supreme Court of Canada has become fond of. They have used it to protect the salaries and perquisites of judges, to my distress. I would think that abolishing the Supreme Court of Canada would certainly attract arguments about the independence of the judiciary.
Senator Austin: Would you describe the unwritten rule as a convention of our Constitution?
Mr. Hogg: It goes beyond a convention. They have used the unwritten rule to actually strike down statutes, but I do not think a convention has ever been used to strike down a statute. Rather, a convention will change the way a statute operates. They have given this unwritten principle, which they invented, a higher status than a convention.
Senator Austin: I wish I could take you by steps through this but our time today is limited.
In repeated constitutional law cases in Canada, we have seen the imposition of Lord Sankey's living tree doctrine in the Privy Council case, the name of which I have now forgotten.
Mr. Hogg: The Edwards case.
Senator Austin: The Supreme Court of Canada has applied living tree doctrine arguments to many cases. We had Mr. Justice Willard Estey before us when we were dealing with proposed legislation for the Nisga'a, and he described the doctrine to us. Mr. Gibson argued that the living tree doctrine would apply to the interpretation of the essential character of the Senate and that the court would look at section 44 and still say that there is an enumeration. You said there was a corollary that everything was there, but the equal corollary is that it is illustrative only and does not argue to change the essential character of the Senate by unilateral — and by that I mean Parliament alone — methods. The court was clear in 1980 that the provinces had a role to play. Your argument is that the provinces gave up that role when they agreed to section 44.
Mr. Hogg: Yes.
Senator Austin: Do you accept that there is another way of reading the Constitution that does not agree with you?
Mr. Hogg: Yes, I accept that. I do not think my view is compelling, although I think it is the better view. I agree with Patrick Monahan on that.
No, there is the argument that there are residual elements of the old Senate reference that continue to cling to the current provisions. I do not dismiss that argument; I simply say that in my view it is unlikely to be accepted by a court.
The Chairman: Once again, we have had a remarkable presentation and exchange of views. Thank you, Mr. Hogg, for your time and your responses to our questions.
The committee adjourned.