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Proceedings of the Special Senate Committee on
Senate Reform

Issue 1 - Evidence, September 6, 2006 - Morning meeting


OTTAWA, Wednesday, September 6, 2006

The Special Senate Committee on Senate Reform met this day at 10:50 a.m. to consider the subject-matter of Bill S- 4, An Act to amend the Constitution Act, 1867 (Senate tenure).

Senator Daniel Hays (Chairman) in the Chair.

[Translation]

The Chairman: I want to start by welcoming our invited guests and viewers to this first meeting with witnesses of the Special Senate Committee on Senate Reform.

For the benefit of those tuning in, let me briefly explain the purpose of these proceedings.

[English]

During the last federal election, the Conservative Party of Canada promised that, if elected, their government would take steps to reform the Senate.

As a first step, the government introduced Bill S-4 in the Senate on May 30 of this year, proposing that terms for new senators be limited to eight years. Our committee looks forward to hearing expert opinion on this issue.

As well, on June 27, Senator Lowell Murray introduced a motion, seconded by Senator Jack Austin, that would increase the number of Senate seats in the Western provinces.

[Translation]

This is the first time since 1992 that the question of Senate reform has come before Parliament. In light of the importance of the proposed changes to the future of our country and of this institution, the Senate moved to strike a special committee to conduct an in-depth review of the proposed reform and of all related matters.

We expect to present our findings and recommendations to Parliament and to Canadians in a report at the end of September.

[English]

To learn more about the Special Senate Committee on Senate Reform, its membership, upcoming meetings and future transcripts, we invite our viewers to visit the committee's website.

Today, we are privileged to have as our first witness Dr. Ned Franks, Professor Emeritus at Queen's University. He will be followed by Dr. Leslie Seidle, a Senior Research Associate with the Institute for Research on Public Policy.

[Translation]

The meeting should last until approximately 12:30 p.m. I would ask that participants keep their questions, comments and answers as concise as possible.

Would you care to say a few words, Mr. Deputy Chairman?

Senator Angus: Thank you, Mr. Chairman. I agree in principle with the Chair's opening remarks. However, I would like to say a few words in my capacity of Vice-Chair of the committee.

[English]

In my respectful view, ladies and gentlemen and all listeners out there in television land, I feel the Senate of Canada has served Canadians very well since it was established in 1867. Hundreds of distinguished Canadians, indeed thousands, have passed through the upper chamber, rendering valuable service to Canadians in a wide variety of ways.

As in most areas of our socio-economic life in this great country, our institution should, and in most cases does, evolve with the times. The Senate is no exception. I believe Bill S-4 is but the first stage of the necessary Senate reform the present government has undertaken to carry out.

As Senator Hays has said so clearly, we believe the substance of Bill S-4 limiting the terms of senators to eight years — when I say ``we'' I mean the government — is well within the competence and jurisdiction of the Parliament of Canada. As well, we believe there exists a significant number of independent experts who share this view.

We trust these hearings will afford Canadians a unique opportunity to hear from all experts with all points of view and to carry out an informed debate on the specific issues involved, not only with Bill S-4 but indeed on a wide range of other issues related to Senate reform.

It is high time to bring the Senate into the 21st century and debate the changes necessary to enable our institution to carry out its role in our democratic system efficiently, effectively and in a balanced way.

[Translation]

We sincerely hope that these hearings are only the first stage in a process culminating in a reformed and renewed Senate.

[English]

One that will be able to carry on the role of providing sober second thought on legislation and the production of sound public policy in a fair way for Canadians in all regions, districts and provinces of Canada.

Tomorrow, Prime Minister Harper is planning to appear before this committee to share with us his vision on the issues at hand.

[Translation]

The Chairman: Thank you, Senator Angus. You have the floor, Professor Franks.

[English]

C.E.S. (Ned) Franks, Professor Emeritus, Queen's University, as an individual: I feel a bit like a fish out of water talking about Senate reform because I have taken some pride, probably unjustly, in being one of the few people in Canada who talks about what the Senate does rather than how to reform it. There is a minor industry in Canada on Senate reform, but the number of people who talk about what the Senate actually does is very small indeed.

However, I believe I have benefited from that because I have an immense respect for what the Senate does as a chamber of sober second thought; although, as some people have said, it is not always sober and it is not always thoughtful. On the other hand, it has been very valuable over the years in the Parliament of Canada, both for encouraging the rethinking and reviewing of legislation coming from the Commons, and in its committee examinations, which form an outstanding body of legislative study.

My remarks are based on the assumption that those strengths of the Senate should continue and that it should not have a new and different role in Confederation. The Senate should not become a confidence chamber. I do not believe it should become a house of the provinces, where the provinces are represented to the exclusion of its role within the parliamentary processes. I do not think it should ever be anything but a second chamber in the Canadian Parliament.

The House of Commons is the chamber in which, to a great extent, the people of Canada are represented on the basis of one person, one vote. It is the House that is the centre for government action and for the interaction between government and opposition. I think it should remain that way.

I also offer a caution from my own perspective. Over nearly 140 years of Canada's existence, there has only been one significant reform to the Senate. The reform happened in 1965 when the age limit of 75 for senators was introduced, despite countless efforts at attempting to reform the Senate one way or the other. I offer that as a caution, which I shall get back to.

The two issues before the Senate deal with just two of many issues in Senate reform: one is the length of senators' terms and the other is the regional basis for representation in the Senate. These reforms do not deal with two other key issues: the method of appointment of senators and the powers of the Senate. I believe these four areas of reform are inseparably related to one another, and they need to be considered together. I shall do so in my remarks.

I have no objection to the eight-year term for senators. Some people propose nine years, others propose 12 years. I think eight years works. I would feel very uncomfortable if senators were limited to one eight-year appointment. Members of the House of Commons can be re-elected as often as they want. I see no reason why senators should not be reappointed. In fact, I believe the strength of the Senate is the long-term service of the members in the house so they can offer their wisdom and attention to an issue over a period of years, whereas the turnover in the House of Commons is much more rapid and has a problem of transient membership.

The real issue with respect to senators, in my mind, is the method of appointment, which I do not believe can be changed in the sense that they are made by the Governor-in-Council on the recommendation of the Prime Minister. The real question is: How does the Prime Minister select senators?

At present, it is one of the mysteries of the realm, a secret of state, like the appointment and dismissal of deputy ministers. It seems that once we talk about an eight-year term for senators, we have to question the process of appointment, and I have absolutely no doubt that the next step is a process for electing senators.

In other words, an eight-year term for senators is not democratic; it is simply limiting the term of senators. It only becomes democratic once there is an electoral process that is democratic in its nature for senators.

Without going into it in any more detail, I will simply say the problem in the electoral process is whether it is constitutional for elections to be held in which potential senators are identified and then the Prime Minister either chooses from lists or individuals selected to that process and nominates them to the Governor-in-Council for appointment. The real issue is what those elections are about. I discuss this in my paper on, what I call, the representational role of senators. I think it has to be clear that senators are not expected to duplicate the representational role of the House of Commons. The House of Commons is elected on the basis of roughly equal constituencies across Canada in which the members are expected to represent that body of constituents in Parliament. Most members of Parliament rank their constituency service very high.

I see no reason why senators should duplicate that role, or mirror it, if they are elected. For the Senate to serve its place in Confederation it needs to have a sense of representation different from that of the House of Commons.

Historically, and in its origins, the Senate was expected to both represent provinces and to represent money — the advantaged people in the country. As Sir John A. Macdonald said, there are many more poor people than rich people and the rich people are entitled to some protection in the country. I think we have gone past that now, but I am still not satisfied that the discussion of the election of senators has really clarified the constituency they are supposed to represent. I do not believe it is provincial governments because those are more than adequately represented in the paraphernalia of federal-provincial relations and first ministers' conferences, and I do not believe it is provincial legislatures. Therefore, what is it? Regions? Yes.

The main strength of the Senate has been its deep roots in those constituencies which do not necessarily get represented through the normal electoral processes: the professions, the arts communities, the Aboriginal community, other groups of identifiable minorities and simply people with a long-term concern, a passionate concern often, for problems in our society. For example, the Senate's work on fisheries I believe is outstanding in terms of committee work. The work on aging populations, the work on euthanasia and assisted suicide, the work on medicare is, again, outstanding. I would hope that any reform of the Senate maintains that sort of basis of representation in the Senate. How that is done through an electoral process, I do not know.

If I had my ideal druthers, I would say election is an excellent method but there are other ways. We could have the provincial assemblies nominate a third of the senators, the Prime Minister nominate a third, and the Companions of the Order of Canada nominate the other third. This would result in a real variety of interesting people in the Senate and still allow it to maintain its existing functions.

The procedures for the elections will be far more important than appreciated. I do not believe it should be a first- past-the- post procedure. I do not believe that senators should be elected one at a time. It should be at least half the senators in a province elected in any given election, and it should be proportional representation. Otherwise it seems to me the representation in the Senate will continue with the extreme biases that we already have in the electoral system at the House of Commons level.

For example, Saskatchewan, Alberta and Prince Edward Island have no opposition members in the House of Commons at present. However, I believe the majority party in those provinces — the one that elected the members into the province — received less than 50 per cent of the vote and the other one slightly over 50 per cent. If that bias is carried through to Senate elections it will exacerbate a problem that is already severe in the House. Therefore, I would push for pure proportional representation in the Senate, unqualifiedly.

On the allocation of seats between provinces, that unquestionably requires amendment to the Constitution. I am sympathetic with the proposal for increasing the representation of the Western provinces. I question, at this point in time, whether we still need to look at the regional basis for representation as opposed to province by province. At present both Alberta and British Columbia have a greater population than all the Maritime provinces, and Newfoundland and Labrador, and yet they have six members each in the Senate as opposed to a total of 30 for the Maritimes and Newfoundland.

I agree, and I do not think you go all the way to pure equality on the one hand or to pure representation by population on the other hand; but again this has to be looked at in the context of the purposes of the Senate, and I believe there is a problem. However, there is a caution which must be made: Changing the number of senators per province requires a constitutional amendment.

The last point I want to deal with — and this is one not covered as far as I can see in these reforms — is the powers of the Senate. I do not see any reason for fundamentally changing the powers of the Senate. The Senate now has the power to reject legislation coming to it from the House of Commons. I do not see that as a problem. In the fullness of time, if the Senate believes legislation is enough of a problem or is contentious enough that it should be rejected, then there is the opportunity for the government to go back to the people for a mandate, which presumably the Senate would then accept as it did on the free trade measure.

I itemize in my written submission five instances where I think the role of the Senate must be clarified, because the more you move toward an elected Senate and one that has, in a sense, more legitimacy, the more the procedural rules must be clarified as to when the Senate can use its powers.

The instances I identify are, first, the rare occasions when the Senate believes that the legislation coming from the Commons is so contentious it should not become law unless the government receives support from the electorate; second, occasions when the Senate believes that legislation should only receive final approval after a significant delay that would allow the public and Parliament to be educated in order to make a better informed decision on a contentious issue; third, occasions when the Senate disagrees with legislation but is prepared to allow it to become law despite majority opposition in the Senate; fourth, occasions when the Senate agrees with the intent of legislation but wants amendments before the bill becomes law; and, finally, occasions when the Senate has neither passed nor rejected a bill after an extended length of time, for example six months. I believe those can be defined and clarified in a way that makes it clear what the role of the Senate is through procedural changes within the Rules of the Senate, the Standing Orders of the House, and that these do not require a constitutional amendment.

Having said that, I want to caution that the Senate is sometimes looked at as the bogeyman in Parliament, especially by a new government of a different persuasion coming in. The Mulroney government looked at it that way and so have others. However, I want to put this into perspective and I will give you some statistics: 83 per cent of the bills that the Mulroney government introduced into Parliament received Royal Assent. This is greater than the 78 per cent of bills introduced by Prime Minister Trudeau that received assent in the previous Parliament and is much greater than the 69 per cent of bills introduced by the Chrétien government that received assent.

In terms of parliamentary batting average the Mulroney government was more successful than either the preceding or succeeding Liberal governments despite all this discussion of terrible Liberal domination of the Senate and the hostility to the Mulroney government, I do not have the exact statistics on how many died in the Senate, but it is a relevantly small proportion to the number of bills that did not get passed.

Senate obstruction is a greatly overrated aspect of the current system. Over the years, the Senate has used its powers wisely, but I believe, with the looming imminence of elections and a more legitimate, more visible Senate, that this whole area needs attention.

Leslie Seidle, Senior Research Associate, Institute for Research on Public Policy, as an individual: I am honoured to have this opportunity to come before you, and particularly to be here with Professor Franks, whom I have known and respected for a number of decades.

I should mention that I am appearing in my personal capacity and the views that I express are not those of the Institute for Research on Public Policy.

[Translation]

Before broaching the subject at hand, I would like to say a few words about the activities of the Institute for Research on Public Policy in the area of democratic reform. The IRPP has a longstanding interest in governance and federalism. In 1999, under Institute President Senator Segal, the "Strengthening Canadian Democracy" series began. The series was launched in response to concerns over the decline in turnout at the polls, particularly among young voters.

Some felt that democratic legitimacy could potentially be seriously compromised. That legitimacy is the product of various policies and practices. Therefore, it was important to look beyond the voting system which was the focus of research and look at other issues such as political financing, voter registration, parliamentary reform, the role of the media, and so forth.

Over the years, papers have been published on these and other topics. Several public events have taken place across the country. Last year, the institute published a book bearing the very same title that includes most of the studies conducted on this broad range of issues.

[English]

Just a word before I turn to Bill S-4 about, in a sense, who I am. I am not from the academy, rather I am someone who spent a lot of his career — particularly in the first 10 years or so — working on Senate reform. I was closely involved in the discussion paper that Mark MacGuigan tabled before the Special Joint Committee on Senate Reform in June 1983. I followed closely the work of that committee leading to its report in January of the following year.

That was an important report because it was the first time a federal body, either parliamentary or appointed, had endorsed an elected Senate.

I continued to follow the issue during the Meech Lake and Charlottetown periods. This included the development and the rise in support for the Tripe-E reform model.

My personal view, when I started this work in the early 1980s, was the following, and it is still my view today: If the Senate is to be fundamentally reformed, we must start with election. If for some reason, however, election is not retained as a model, this must be justified by a mission for the reformed Senate that requires another way of choosing senators. In other words, one starts with the democratic principle and if one is pushed away from it, it must be for a reason that has to do with the design of the reformed Senate.

When I speak about the Senate, I do it as a political scientist, one who specialized in the electoral process and political institutions. Political scientists, except some of the less respectable ones, do not critique persons; they critique institutions and processes and that is my business. So I, as well as Professor Franks, have a great deal of respect not only for the people in the Senate, but also for some of the work done over the years.

To take one example, the work on health care done by Senators Kirby and Keon, which was later published in a different form by the IRPP. There is no contesting the quality and importance of that work; there are many other examples that could be given, particularly of the committee work.

Turning to the bill itself, Bill S-4, though modest, is a useful change. We are told it is part of a series of steps. I will have a comment on that later.

The bill will result in more frequent turnover within the Senate and as a result, a better circulation of ideas. Ideas and positions come with people and if people change, there should be a change in the content of what is contributed to the work of the Senate.

I was a bit unsettled, though, when I read the account of the second reading debate to learn that reappointment would be possible. I should have understood that point from reading the text of the bill, but sometimes, as one is remarkably economical, one reads something and does not come to a conclusion about the consequence. I am concerned about reappointment. If the government is claiming that this is a step to a more democratic Senate, allowing reappointment is not necessarily a step in that direction. There could be cases where someone's work is outstanding and where reappointment is merited, but there is also the possibility that someone — particularly nearing the end of his or her eight-year term — might be keen to be reappointed and perhaps be less critical or independent in the exercise of their functions. I would not suggest there would be a lot of bad faith, but there is always a possibility this could occur. I recommend the bill be amended to specify that there would be no reappointment of senators.

There is a good deal of light between Professor Franks and me on the adoption method. I feel confident that this can be done within section 44 of the Constitution Act, 1982. The reason I say this is that in reviewing section 42, the general amending formula, it lists four items for the Senate: the powers, the method of selection, the number of senators for each province and the residence qualification of senators. It does not say anything about term. I do not know how one would shoehorn term into one of those four items that are listed in plain language in section 42. Therefore, there is no quibble about the appropriate amending formula.

Another interesting piece of information cited in some of the debates is that in the report of the 1984 special joint committee, the Molgat-Cosgrove report, there was a recommendation that the terms be reduced to nine years as an interim measure to fundamental reform. They recommended an elected Senate and reduced powers, et cetera. The committee — I assume it had expert advice from both political scientists and lawyers as the report was drafted — was clear that this could be done under section 44. It did not qualify its recommendation at all. This can be found on page 36 of the report.

There is another matter that needs to be considered in the context of the staged approach to Senate reform. It is not in the party platform of the Conservative Party from the last election. It is not in the Speech from the Throne. It is the property qualification; the $4,000 that has to be held in property. I gather that on some occasions it has entailed some rapid visits to real estate agents to allow the appointment to go forward.

In the Senate, on June 1, Senator Carstairs asked the government leader if it was possible to eliminate this qualification. I do not know whether Senator LeBreton was distracted as there were two questions put forth of which she only answered the first. She did not answer the second question about the property qualification. Therefore, I have no way of knowing what the government's position is on this issue and I am not sure that it would necessarily influence my own position.

The preamble to the Bill S-4 has three references to the democratic principles and values of Canada. In that context, I am puzzled why the government would not make the additional step of deleting the property qualification. With the logic of section 44, which I mentioned earlier, there is no doubt that this can be done by Parliament acting alone. It does not appear to be a provincial matter for the amending formula. It is time to get rid of this odious anachronism in the Constitution.

I suggest the government consider amending Bill S-4 to expand its subject matter, but I believe that can be done on recommendation of the minister. If I am not fully knowledgeable about procedure and it cannot be done, I would recommend a separate bill on this matter as part of the staged campaign of Senate reform.

On the question of the staged approach, we are told the Prime Minister is coming to this committee tomorrow. Consequently, we will have more information about the staged approach. For the moment, all we have is what is on the public record. One of the promises is that there will be legislation on advisory Senate elections within the government's present term. The modalities have not been announced but I have some concerns about this in relation to the amending formula.

While technically, the method of selecting senators, as Professor Franks pointed out — that is, appointment by the Governor General on the Prime Minister's advice — would remain the same, it could be argued, as I think some provinces might, that the way senators are selected had in essence been changed. The winning nominee from a provincial election with a popular mandate would most probably be summoned to the Senate. One could say in response that the Prime Minister can choose anyone from a list or not from a list and so on, but if someone had won an advisory Senate election in the province, it would be difficult for the Prime Minister to ignore that popular result. It could, therefore, be argued that one is getting close to the content of the general amending formula, the selection of senators. When talking about something as fundamental as this, we need to consider the spirit and not just the letter of the amending formula. If there is some ambiguity, and there is a bit here, it is wise to lean toward an interpretation of the amending formula that is respectful of provincial governments, particularly on an institution that was a central element of the Confederation bargain.

To conclude, I want to say a few words about the potential links or the absence thereof between the elements of the staged approach and fundamental Senate reform. From all that I have read, the government's staged approach does not seem to be linked to a vision of what the Senate might become once the stages of incremental reform are completed. Some of the stages have been announced but we do not know the destination. It is rather like embarking on a trip and saying, ``I am going somewhere. I will stop in city A and B, but I am not sure what city D is that I will get to at the end of my journey.''

We need to think about this and we need to give it particular consideration before we go further along the staged approach. Most fundamentally, we need to think about what the mission of the Senate should be in the 21st century. Should it be legislative review only? The preamble refers to that, with which I have no quarrel. It is a given that that would always continue even if the Senate were elected. However, should the Senate have a very specific regional representation mandate? Looking a little further out, should it be a chamber where there is a particular mission of protecting and reflecting Canadian diversity, such as, for example, official language minorities, women, Aboriginal people? The Senate could do all of these, or it could do just two or do just the legislative review. However, if we are to decide on the modalities of a reformed Senate, we should have a better idea of what this mission is, because many of the things that follow depend on the mission that is being defined.

For example, if the three roles were taken together, we would then move on to matters such as whether we should have proportional representation for election, which I am in favour of; whether we should have particular rules that might be in law or in party practice about the ordering of candidates on lists in order to encourage the representation of women; or whether we might have special powers for the Senate on legislation relating to official language minorities. There have been examples of this in the past, in the Charlottetown accord and so on.

The fundamental issue is that we do not know what Canadians think about the reformed Senate's mission. This needs to be explored and, ideally, answered at least in part before we decide on the elements of fundamental reform. In this matter, the past may be a partial guide, but the last attempt at Senate reform, in the Charlottetown accord, dates from 1992. That is 14 years ago. The world has moved on. The population is more diverse. We are somewhat more attentive to the representation of Aboriginal people, even though there was a very significant section in that accord on Aboriginal self-government.

We need a new national exploration of fundamental Senate reform. Before you all groan and moan and say, ``We will not get back into the swamp,'' an exploration can be a low-key thing and it can take place very slowly. I am not suggesting a full-scale exploration; there may not be enough people interested in a large exploration. Not all of us have the passion for this question.

We also need, as part of that exploration — and I want to leave this with you as a thought for your report — to be thinking about the process that could ultimately be used to start negotiations among governments on the matters that do require 7/50 consent. Perhaps the time is ripe for an initial meeting of governments. Perhaps the time is not ripe. I do not have the answer to that question. I have a suspicion on it, which I can share later, but we do not know whether the conditions have changed.

We cannot live forever with the kinds of press lines that I had to write when I was in Privy Council Office saying, ``We cannot address the Senate because it will mean going into a quagmire.'' We do not know that any more and we do not know whether Canadians believe it or whether experts believe it. Thus, it is a question that merits exploration in addition to the form of the reformed Senate flowing from the mission that we need to think about very hard.

Senator Austin: Professor Franks and Dr. Seidle, thank you very much for your presentations this morning. You raise a host of topics. I feel like a little boy with five cents staring at a candy counter with 500 choices. I have to make choices, so here we go.

My first issue is that of the constitutionality of Bill S-4. There is a huge difference in my mind between the ``is'' and the ``ought.'' The ``ought'' is, what should the Senate become in terms of its powers, how should senators be chosen, and what should be the representation of senators in the regions of Canada? Those are all important questions. They have been raised specifically by Professor Franks.

Before we can start down that path, it strikes me that the ``is'' is a constitutional question: Can Bill S-4 be deemed to be constitutional? The Constitution is something that conditions all the other issues. The Senate was created by a constitution, is a constitutional entity and is defined by the Constitution.

I refer both of you to the Upper House Reference, 1980 Supreme Court Reports. As you are both aware, Prime Minister Trudeau introduced Bill C-60, which offered the provinces half the appointments. Under that bill, the Prime Minister would agree to the provinces nominating half of the senators, with the Prime Minister continuing to nominate the other half.

Mr. Trudeau in 1978 asked the Supreme Court of Canada whether those changes and others in his Bill C-60 could be effected by the Parliament of Canada by legislation alone.

The Supreme Court said:

At present, a senator, when appointed, has tenure until he attains the age of seventy-five. 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 the ``sober second thought in legislation.'' The Act contemplated a constitution similar in principle to that of the United Kingdom where members of the House of Lords hold office for life. The imposition of a compulsory retirement at age seventy-five did not change the essential character of the Senate. However, to answer this question we need to know what change of tenure is proposed.

The court goes on, and I will not read it extensively, to indicate that the issue constitutionally is what would affect the fundamental features or essential characteristics of the Senate. In the case of the House of Lords, one of its essential fundamental features or essential characteristics is that of an appointed chamber, and the Constitution contemplates a Parliament similar in principle to that of the United Kingdom.

We have here, I would argue, a constitutional issue. Section 44, as referred to by Dr. Seidle, occurred thereafter. I would like to know in particular whether either of you think that section 44 in any way would amend the decision of the Supreme Court of Canada.

Mr. Franks: I will have the briefer answer, because Dr. Seidle knows much more about this than I do. I am not certain, and I suspect that at some time, one way or the other, this will be tested in the courts and the courts will decide. As Sir Roger de Coverley said, it is the kind of question where ``there is much to be said on both sides.'' I do not know what the answer would be.

I do offer two suggestions, having said that. One is that once the elections are added in, it is clear that this is a step toward democratic reform, as the government said and as you will know better in a few days. Then the essential character of the Senate is being changed, and one has to ask, at what point in a series of incremental steps does one change the essential character and at what point does one need to go through a constitutional amending process to recognize that change? It might well be that the courts will say the first step, which is Bill S-4, is the essential change, but then again, they might not.

I want to put forward is a very serious caution. Referring to the end of my paper: There is no doubt that changing the number of senatorial seats for provinces requires an amendment to the Constitution and all that that entails. Canada does not have a tradition of making small incremental amendments to its Constitution. The amending process has proven to be an all or nothing process in which each province and interest group wants to add its particular change so that the final product becomes a massive, jumbled, incoherent hodgepodge that fails to survive the obstacle course of provincial and electoral approval. Constitutional reform has become a poker game, with constantly increasing stakes where everyone loses except the forces of disintegration. Perhaps this time the process can be different. There are no grounds for supposing that it will.

Senator Austin: That is a very interesting observation, but this committee has a bill before it introduced by the government called Bill S-4, and it has an incremental change. The question is whether Bill S-4 is a fundamental change, changing the 75-year limit to a term or an eight-year limit. Either 75 years of age limits the term or eight years of service limits the term. I will leave the reappointment issue to the side.

What is the essential nature of the Senate as defined by the Constitution? There are arguments, Professor Franks, one which I believe and accept, that the independence of the Senate depends on whatever the term is for the individual to 75 and that there needs to be a freedom, as with the courts. One would say that if a judge was to be appointed for eight years and could be reappointed after eight years, then you would not have an independent judiciary. Well, you would not have the Senate as an independent political judiciary either, which is an essential feature of the Senate. Could you comment on that?

Mr. Franks: Very briefly, because I defer to Dr. Seidle on this one, and I must say we do not agree.

Senator Austin: You mean with Professor Seidle.

Mr. Franks: He will not agree with me, is what I should say.

The point is that it is a question on which there are two sides, regardless of how many legal opinions you get on one side or the other, if, as and when it gets into the courts. I have no doubt that it would go to the Supreme Court of Canada and, being a betting man, I would probably give you odds of about 60-40 that it would be considered a fundamental change. I suspect Dr. Seidle will not agree.

Senator Austin: I have one further short question to you and also to you, Professor Seidle, if you could keep it in mind.

Would ``If in doubt, don't,'' be good advice? If there is doubt about the constitutionality of this bill, should it be referred? Passing the bill and then finding it unconstitutional after the event would be a parliamentary quagmire.

Mr. Franks: It would be an expression of sentiment on the part of Parliament period. I would like to see it referred to the Supreme Court of Canada.

Mr. Seidle: I will start with the question that was added at the tail end. If in doubt, should it be referred to the Supreme Court of Canada? First, I do not think there is any doubt on section 44, and second, you might not actually get a very clear answer. Senators have been fond of referring to the reference from 1980, but if you look at it very carefully, they decline to answer virtually every question put to them in the absence of factual context. They even declined to answer the question of whether Parliament could change the name of the Senate acting on its own because they said that the name would be part of a fundamental change to all the other characteristics of the Senate, so simply changing the name was something that they could not answer. It was a very prudent response.

Senator Austin: Here there is a specific context. We have a bill with a very specific recommendation, an eight-year term, so your answer would have to be amended in terms of something very specific being proposed for constitutional change.

Mr. Seidle: Yes.

Senator Austin: I agree that the reference was broad-brushed.

Senator Murray: The Court said that they would have to know the exact tenure that was proposed before they could express a view.

Senator Austin: And here we have it.

Mr. Seidle: To return to the first question that Senator Austin asked, all this debate about the essential characteristics of the Senate is interesting. It is part of the history and jurisprudence on this. However, it dates from 1980, and in 1982 the amending formula came along. My understanding is that the courts first looked to statutes and facts and then turned to history and jurisprudence.

If we had an amending formula that was badly worded and very ambiguous or very convoluted — some constitutions, at least some parts of them, are much more difficult to follow and ambiguous than ours. I would not say all parts of our Constitution are models, but the amending formula, in comparative terms, is very clearly drafted. The Supreme Court of Canada might go back to the essential characteristic debate, but it might see no reason to go there at all.

I should like to briefly respond to this reference to the Constitution being similar in principle to that of the United Kingdom, because this point is also coming up a lot in the debate. The Constitution was drafted in 1867 and many things have happened since then. People used to make that argument about the Charter of Rights when it came before a parliamentary committee at the time, saying we could not go down this route, that it would upturn parliamentary government and was incompatible with Westminster. Well, we have a Charter of Rights. Most of us would agree with the mostly beneficial effects that have flowed from it, so I do not think we can any longer cling to the preamble of a statute that is getting to be 150 years old.

Senator Angus: Thank you, gentlemen, for your very thoughtful presentations and indeed for providing us with your equally thoughtful and well-researched written submissions, which will form part of our record.

Dr. Franks, as I understood you to say, unless a senator gets to the Senate by way of an elective process, it is not a democratic process. In other words, his elevation to the Senate is done in an undemocratic way. Do I understand correctly?

Mr. Franks: Yes.

Senator Angus: I would like to pursue that point. I also heard you mention that we need to find a way to preserve the good constructive work that the Senate does within the democratic process in Canada. Are there other ways? I thought you left the door open by suggesting that other ways could be deemed democratic without an underlying election. Could you outline the other ways?

Mr. Franks: I was not boldly claiming that the current appointment procedure is democratic, nor was I suggesting that appointment on the recommendation of provincial legislatures is necessarily democratic. It is an indirect vote. You could argue that is true for prime ministerial nominations and appointments. However, I think that we sometimes become obsessed with the democratic element and forget that we already have a democratically elected chamber. My question was, why would we want two of them? I suppose that I am simply being provocative, but I suggested that if we had a broader basis of nomination, we would have a more varied Senate than we would get through provincial elections. I suggested that one third of the nominations be made by the provincial assemblies, one third by the Prime Minister and one third through the 165 Companions of the Order of Canada.

Senator Angus: In other words, just because it is not ``pure wool'' democratic, there could be a way that is different from the discretionary appointments made by an incumbent Prime Minister. You envisage a constructive reform in terms of the elevation process other than the election process.

Mr. Franks: Yes, absolutely. Here again we get to the question of changing the essential composition of the Senate. As I said, the current manner in which the Prime Minister identifies nominees for the Senate is one of the mysteries of the realm. arcana imperii, to use the Latin term. No one really knows, and I do not think I am insulting any senator around this table when I say that if you took a poll of political scientists or journalists a month before or even the day before senatorial appointments, they probably could not guess one out of 10 of the appointments correctly. In other words, we do not know the procedure. I simply suggested that there is nothing the matter with the Prime Minister asking advice with respect to appointments in a different way from what happens at present. I will stick by that.

Senator Angus: That is basically what I thought you said and I appreciate your elaboration.

Dr. Seidle, I am intrigued by this issue, as are many of my colleagues from Quebec, of the $4,000 property requirement. First, that requirement is quite different in Quebec than it is in the rest of the senatorial regions or districts. There are 24 well-defined constituencies, so-called, in Quebec. Over the years the practice and convention has been that individual Quebec senators must satisfy the property requirement even though they do not live there and they may have very substantial assets and property elsewhere within the province. What was the background to that provision? I believe you said that Parliament alone, without any reference to the Supreme Court of Canada or any constitutional amendment, could do away with the property requirement.

Mr. Seidle: My opinion is that you could get rid of the property requirement through section 44, just as the term is being reduced through section 44.

The Quebec electoral districts issue is actually not as straightforward as you may have suggested. Your comment that there is a clear map is not true. When I was in the Privy Council Office, there were references at various points to the fact that there was a map somewhere; usually the Legislation and House Planning Secretariat was mentioned. However, the more important thing about that map is that it is a map of Quebec as it existed at the time of Confederation. That Quebec, which is certainly less than half the geographic area of the whole province now, was divided into 24 districts because that was the basis upon which the former legislative council was organized. Some of you with a keen knowledge of history may know that the legislative council was actually elected prior to Confederation. I believe it existed from 1855 to Confederation. That is why there is this so-called map of Quebec.

You are quite right in that the senators from Quebec have to hold $4,000 of property within their district. That is why Senator Fortier had to go and buy, I believe, a vacant piece of land in the Rougemont area of Quebec. I do not know whether it came with apple trees; there are lots of apple trees in that part of Quebec. It might be a bit better if it did have some apple trees.

In the case of section 42, the items that require provincial consent are the powers of the Senate, the method of selecting senators, the number of members per province and the residence qualifications of senators. It does not refer to the property requirement for senators, so to my mind you could delete the $4,000 property requirement and still retain the residence qualifications, which in Quebec means you have to have come from or live in one of those districts on this so-called map. How you would bar someone who decided to live in Lac St. Jean, which to my mind was not part of Quebec at the time, I do not know. However, it is pretty clear that you can delete the $4,000 property requirement. The Molgat-Cosgrove report made exactly that recommendation and said that it was under section 44 as well.

Senator Angus: What was the reason for the property qualification?

Mr. Seidle: The reason, quite bluntly, at the time was to keep the Senate as somewhat of a bulwark for property owners against the emerging forces of democracy. As well, the forces of democracy of a vote for the House of Commons were not terribly vibrant at the time because one had to own property to vote for the House. Only a small proportion of men actually had the franchise for the House of Commons, but it has lost any meaning over time. In some people's cases it is more of a nuisance.

With respect, the Leader of the Government in the Senate in the second reading questioning implied that it was not really something to be terribly worried about because $4,000 was a lot of money in 1867 and was in a sense exclusionary. but today it is peanuts and does not really matter. Well, if it does not really matter, let us just get rid of it; let us clean it up because I think in some cases it actually does matter. If I were going abroad and had to describe the requirements to be a senator, I would not start with the $4,000 property qualification. However, if someone asked me about it, I would not be very proud to have to admit that one has to own property to sit in our second chamber.

Mr. Franks: May I make one point about the $4,000? I discussed that requirement with some economic historians some years ago, and the conclusion was that in terms of today's property ownership that was somewhere between $750,000 and $1 million-worth of property. One must remember that in 1867 there was a much less even distribution of wealth, so it was very unusual that people would own $4,000 worth of property.

Senator Munson: To follow up on this, to carry it one step further, the qualifications of a senator shall be as follows: He shall be of the full age of 30 years.

Are you open to the idea that, if you want to get rid of the $4,000, perhaps this discriminatory aspect in the Constitution about ``he'' and the 30 years should be eliminated?

Mr. Seidle: I am personally in favour of that. There is a federal statute somewhere that says ``he'' should be read as ``he or she.'' I do not think amending all the occurrences of ``he'' is a huge priority.

I am not sure of the constitutional status of lowering 30 years to, let us say, 18, as for the House of Commons. It might get us into the territory of changing the fundamental nature of the Senate.

I think it is a matter the committee should study, and you may want to consult your legal advisors. After all, you have the authority to put down items for further consideration. Maybe the Prime Minister will surprise us with some of these items tomorrow. I would be delighted if he did.

Senator Munson: The founders of Confederation gave the Senate a significant role in protecting minorities. Neither one of you spoke about minorities, but I am sure you have points of view.

I ask this question because, in my job description, it is a constitutional obligation to protect minorities. In an elected Senate, I do have concerns and worries about people who have been appointed to the Senate and what chance they would ever get to become a senator in an elected environment.

I will refer to, for example, an Acadian of great merit, retired Senator Viola Léger from New Brunswick, and two senators who sit with me today, Senator Maria Chaput from Manitoba and Senator Charlie Watt from Nunavut. I can go on and on with a list.

Elections cost money, and it is about gaining power. I worry about the minority who would be left behind and the people who represent them. I would like to have both of your views on that.

Mr. Franks: I share that concern. It is not always appreciated that the Senate has a higher proportion of women and has had such consistently for the last decades over the House of Commons. The Senate has and has had more representation of Aboriginal people over the House of Commons, and so on.

I have a concern in a general sense about identifying too many minorities because we all have many identities, and our cultural or racial heritage is simply one out of many identities. However, I think the Senate risks losing something going to an electoral process. That is why I expressed the concern that you really must pay attention to the details of an election procedure so that you do not simply replicate on an exaggerated scale the biases that already exist in the House of Commons.

Mr. Seidle: I agree with Professor Franks. If you are designing an elected Senate, the modalities can have a very important impact. However, there are many examples around the world dealing with how you can achieve some of these objectives. For example, there are a number of countries, without setting exact quotas, that oblige parties — and this is generally for the lower house — to alternate men and women on their lists within the proportional system.

Now, that does not guarantee gender equality, but it has proven effective in the countries that have such procedures to elect a much higher proportion of women than we have. In the House of Commons, we are forty-sixth among democratic countries around the world. We are not doing very well in the House of Commons.

I agree with Professor Franks and Senator Munson, that there have been very distinguished appointments to the Senate of people who might not make it through the electoral process.

As far as Aboriginal people are concerned, there are models such as the New Zealand model where a Maori electoral roll is used to elect members of the House of Representatives; they do not have a second chamber.

Although that might not be directly applicable to Canada, we explored this at the Royal Commission on Electoral Reform and Party Financing about 15 years ago. It is something that could instruct us, if we were designing an elected Senate.

There is also the possibility of having an almost entirely elected Senate with some seats reserved for the appointment of people representing particular groups. There is always the old debate about two classes, but when I say I am in favour of an elected Senate, I am willing to put a certain amount of water in my wine. One never wants to be purer than the driven snow in politics; it does not take you a long way.

Senator Comeau: First, I want to comment on Senator Austin's question with respect to referral of bills to the Supreme Court of Canada. I have always had concern in that regard. It almost appears as though we are seeking permission from the Supreme Court as to whether we can proceed with a bill. All bills are ultimately subject to a Supreme Court of Canada decision, if one decides to go through the process.

We seem to have a division of opinion. Certain experts think this bill should be referred to the Supreme Court for comments and others think it should not. In other words, I think an argument could theoretically be made for all bills to be referred to the Supreme Court. I am not sure whether this bill merits a referral, but I do feel uncomfortable doing so.

I want to comment on the work of the Senate and what a reformed Senate through an electoral process may create. I agree entirely with Professor Franks: There has been some great work accomplished by certain committees of the Senate, especially fisheries, to which he referred specifically. I agree 100 per cent with him on that; it has been great work.

This leads me to the question of proportional representation and whether this model should be looked at. My understanding is that proportional representation is based on a list as proposed by parties. Such a list might begin creating problems in the results of the work of the Senate, as is outlined in brief by Professor Seidle. Would we lose the work that has been accomplished to date?

Mr. Franks: There is a risk in every reform. There are unintended and unexpected consequences.

I do not believe that you can have elections for a Senate without parties entering into the equation. I state that bluntly. It does not matter what your hopes are, I do not believe you can do it. The question is: How do you ensure within the context of parties that the Senate gets the kind of people who can do the job the Senate must do? That goes back to Mr. Seidle's point on the Senate's mission.

As I say, I think there must be minimum proportional representation. Also, there must be a substantial number of senators elected at a time so they are not just choosing one — you are choosing at least two — and there is a chance of a minority group getting in. Whether other conditions are included in that, I do not know.

Perhaps if my dream Senate were in place, I would instruct the appointing bodies — the provincial legislatures, the Prime Minister and the companions of the Order of Canada — to take into account groups that are underrepresented in the House of Commons and who need attention. Aboriginal people would be very high up there. There are other groups.

Mr. Seidle: The classic justification for proportional representation is that it would break down the blocks of single- party representation from particular regions and provinces that we have often seen in the House of Commons. Take a hypothetical case. If you had 10 seats for a province and party A got 40 per cent of the vote, party B got 40 per cent of the vote and party C got 20 per cent, they would get four, four and two seats, respectively. So instead of these cases — Alberta is the most longstanding example, however, there was a time in our memory where Quebec was very monolithic, electing 74 out of 75 for the Liberals on one occasion. There would be a diversity of party voices in the Senate. That seems to be the first consideration.

From that, you can look at diversity of other voices and some of the considerations that I mentioned earlier, which I do not need to repeat. This has been the approach in the literature and in all the reports. One starts with the question of diversity of party representation, because, as Professor Franks said, parties are always going to be with us.

Senator Comeau: You mentioned New Zealand as requiring that certain groups be representative in their list. Is this a constitutional requirement, a legislative one, or an encouragement?

Mr. Seidle: The seats for the Maori date from the establishment of New Zealand as a dominion in 1867. When they reformed the electoral system in 1996, they kept them and, in fact, made a change. Rather than having the number fixed, the number depends on how many Maori sign up on the electoral roll. In subsequent elections, they have gone up by one, so whereas they were four pre-1996, they are actually seven.

However, that is not the only way in which the Maori are effectively represented. They have been active in the Labour Party, so they tend to be well represented through the Labour Party, with MPs elected the way that everyone is, as well as through the Maori seats, so that at the present time, although I do not have the figures in front of me, Maoris are 1 per cent overrepresented in the House of Representatives. They are about 15 per cent of the population of New Zealand, so it is a more significant share of the population than that of Aboriginal people in Canada.

Senator Murray: There has been not much discussion around the table of the proposed constitutional amendment that Senator Austin and I have tabled and which has been referred to this committee to correct the grave representational imbalance from which Western Canada suffers in the Senate. I should like to think that the reason there has been so little discussion of it is that there is widespread agreement with our proposal around the table. I want to put in a good word for it, to say that, if nothing else were done about the Senate, if we continued with the present Senate, I think that this inequity, this imbalance, is something that stands on its own and that a strong case can be made that we should move to correct it. If the Senate passes this constitutional resolution, I believe we can send it to the other players in the amending process, that is to say, the 10 provinces and the House of Commons, and while I hope that Prime Minister Harper tomorrow will have a good word to say about the proposed amendment, he has, or the federal government will have, three years to make up its mind. If they want to wait to see what the consensus is among the provinces, that is fine, as well, but I do hope that he does not close the door as far as his government is concerned to our attempt to correct the imbalance.

Mr. Chairman, the idea of an elected Senate as we speak is just that. It is an idea. It is hypothetical. It is out there somewhere in the indefinite future. What this committee has before it is a bill, Bill S-4, to introduce an eight-year renewable term for future appointees to the appointed Senate. That is what is before us and that is what we will be voting on ultimately.

My opinion is that an eight-year renewable term for the appointed Senate is the worst of all possible worlds. As Dr. Seidle has pointed out, it will greatly increase the rate of turnover of senators and thereby greatly increase the political power of the Prime Minister. While I appreciate the delicacy with which Dr. Seidle raised this matter, human nature suggests that people appointed for renewable eight-year terms will be looking over their shoulder at the Prime Minister who appointed them or the Prime Minister who might have the decision to reappoint them, to be sure that they are not displeasing him or her unduly and not compromising their chances to be reappointed to the Senate. I think it is the worst of all possible worlds.

An eight-year term might be a good fit in some hypothetical elected Senate, but, Professor Franks, I think one would have to take steps within the Constitution to fundamentally alter the powers of the Senate to ensure that the House of Commons, the more democratic institution, retains its primacy. Think of what we will have in an elected Senate: an elected Senate whose members are elected for eight years — that is, twice as long as the normal mandate of the House of Commons; an elected Senate whose members will be elected from larger constituencies than those of the House of Commons — by definition, each will represent more people; and if we went with the elections every four years, for half of the Senate, senators who would be able to say to the House of Commons, ``Our mandate is more recent than yours.'' I think we would have a political powerhouse. We would have what you have told us we must not have, an elite Senate very much like the United States Senate, able to thumb its nose at the House of Commons.

The point I make here is that if or when we go to an elected Senate, with eight-year terms and all the rest of it, the powers of that Senate will have to be very carefully circumscribed by constitutional amendment to ensure that the primacy of the House of Commons in our system as the confidence chamber and the more democratic chamber is maintained.

Mr. Franks: When one faces a proposal for reform, as I said before, one is opening a path with many potential unanticipated consequences. The one you raise, senator, of a eight-year appointed Senate and no alteration to the basis for appointment, is getting close to a worst-case scenario and I share that with you.

I listed in my paper and in my opening remarks the procedural issues where the Senate's powers can conflict with those of the House of Commons.

Senator Murray: I do not think that is sufficient. We would have to circumscribe the powers of the Senate by constitutional amendment.

Mr. Franks: Yes, I would prefer that, but I do believe that a distance can be gone through amending the procedural rules of the two Houses. After all, procedure of the Houses is within the powers of the House to amend. That issue needs addressing, but I put that to you as something that seems to be an essential part of the entire process of what I call increasing the legitimacy of the Senate.

Mr. Seidle: I did not address Senator Murray's bill with Senator Austin because the notice I received said the subject matter of Bill S-4. However, I welcome the opportunity to say that I think it is a very worthwhile initiative. I wish them well in convincing a sufficient number of provincial assemblies to adopt it. I might add as a sidebar that you do not have to have a federal-provincial conference to kick this in.

This can go to the House of Commons if it is passed here. If a province is interested in it and it passes it, well, someone in the Privy Council keeps note of these things. If you reach the necessary threshold, there is the small matter of Bill C-110, which is not constitutional, but one would argue would have to be heeded.

Senator Murray: I do not think that applies. That applies only to resolutions that are introduced by a minister of the Crown, of which Senator Austin and I are not.

Mr. Seidle: I stand corrected on that.

Senator Austin: Currently.

Mr. Seidle: To comment on Senator Murray's prediction that this might be the worst of all possible worlds — he is adding in the direct election of senators — I would not agree or disagree with that. However, I think it confirms the point I made earlier, which is that we do not know where we are going on this voyage. The result of the voyage, good or bad, cannot be predicted either, because the destination has not been determined.

Senator Segal: I have three very direct questions.

I do not share Dr. Seidle's or Senator Murray's optimism with respect to provincial agreement on anything, but specifically constitutional reform as it relates to the Senate. Therefore, I would be interested in Dr. Seidle's perspective on what databases he has seen that would lead him to believe that a change requiring seven provinces and 50 per cent of the population is, perhaps, more easily attained these days than has been the case historically. To follow up on that, if one assumes that that kind of consensus is still challenging, and I think I can report, as colleagues on the committee will know, that Saskatchewan is now formally for abolition of the Senate, Ontario is for abolition, Alberta remains Triple-E or nothing in terms of their stated positions as recently as the last two or three months, I would be interested in both Professor Franks' and Dr. Seidle's advice to this committee with respect to the constitutionality in their judgment of the Prime Minister seeking to have advisory elections that take place out in the democratic marketplace on whatever basis which would then determine the scope and basis of the appointments he might choose to make under the existing Constitution with respect to recommendations to the Crown. I would be interested in your view of that, if you accept the premise that the seven and 50 notion is as difficult as it has been, and I expect Dr. Seidle may have a contrary view on that.

My second question is about the extent to which this committee should be guided, in your judgment, by the founders' purposes. We have a Constitution. It was established when it was established. We can all read the debates that led to the conclusion with respect to the construct of the present Senate. In the end, it was provincial leaders who were most opposed to an elected Senate, for reasons that related to their own sense of their own jurisdiction. History will record that Sir John A. Macdonald was not, as a matter of principle, ab initio, opposed to the proposition. I would be interested in your separate and collective view as to how much we should be influenced by the founders' purposes in our deliberations on this matter.

My final question relates to the bill adding members from the west, and that is a range of interim measures. Our British friends, for example, in their long process of reform with respect to the House of Lords, have begun to come together around some interim measures relative to appointments to that body and how it might be reflective of the democratic mix in the Commons per se as a bridging process to whatever may next be coming. As one member of the committee, I would benefit immensely from your advice and counsel on that point.

Mr. Seidle: No, I do not have access to any database that leads me to be wildly optimistic about meeting 7/50 provincial consent on either the Murray-Austin bill or on something broader. My point is simply that it may be time for us to think about whether some form of national discussion might be timely, not in one body but broken up here and there. It is not only provincial governments that have views on the Senate. Ontario's conversion to abolition is quite recent and I would argue probably positional. Sometimes, in constitutional meetings, positions change as things begin to gel. It can be quite interesting to watch. I would have loved to have been able to watch those eight hours at Meech Lake. I was in the next room, but a lot was happening behind those doors.

On the constitutionality of advisory elections, I do not want to take a hard position on this because I am not a constitutional lawyer. I think there are political doubts that could be raised about the degree to which the government might be slipping into a change to the method of selection. Regardless of the constitutionality, I think the politics of it are something that should be quite clearly thought about.

Senator Segal: When Prime Minister Mulroney appointed that gentleman who was elected in an internal Alberta process, he chose to do so under his existing constitutional powers, and I am not aware of any constitutional challenge raised at that time about the fact that that individual from Alberta had been first chosen through an electoral process, then producing an appointment by the Prime Minister of the day to the Senate.

Mr. Seidle: There was never a formal constitutional challenge. The legal advice within the government was not unanimous on that. Interestingly, Prime Minister Mulroney waited I think almost two years to make the appointment. He only appointed Senator Waters when the Meech Lake Accord died. I am not sure why he felt it was necessary to do it at that point.

Senator Murray: It was not quite dead at that time.

Mr. Seidle: He did not have long to serve.

On the founders' purposes, yes, I think they can be instructive, but the world has moved on greatly. My point earlier about the property qualification that was part of the institutional design of the Senate was that it is just not relevant any more. It is not a question of being disrespectful to our founders; it is simply that one reads that out of our current consideration. The founders were not concerned about the representation of women or Aboriginal people, but some of us who look at these questions consider that a complete vision of an elected Senate needs at least to address those matters.

On the interim measures, I read Senator Segal's instructive op-ed in The Kingston Whig-Standard where he fleshes it out a bit, and that is something to which the committee could give some attention. Setting aside the change in the method of appointment, anything that encourages a diversity of different people from throughout Canadian society is a good thing, or something that also ensures that people from different political parties continue to be represented. A government in power may not be terribly inclined to follow a mathematical formula based on the House of Commons results, but if from time to time they are, as governments have been, good enough to appoint some quality people from the other party, I think that that is mildly beneficial.

Senator Murray: Mildly!

Mr. Franks: That is called unqualified caution.

As to constitutional changes, some things obviously are, like the change in number of seats per province. I do not think there is any argument there.

On the process of the method of selection and the term of senators, I go back to what I said earlier. I believe that the courts would feel that a substantial change in the Senate at some point requires constitutional amendment. It might say that, if you are on the first step of a slippery slope, once you make that first step, you are slipping all the way and it is the first step that requires constitutional amendment. They might say steps two or three.

One question that faces this committee and will face Parliament and Canada is this: Do you want to take step one if you cannot take step two? You could be stuck with step one as the end of the game, and that gets back to Senator Murray's question about the worst of all possible worlds. That is one of the advantages of a package of course. The disadvantage of a package is that then you unquestionably require a constitutional amendment.

The founding fathers — I agree with Dr. Seidle — in the general sense of having a chamber of second thought, with a different basis of representation, yes. However, I would not want the appointment to the Senate limited to people who own $1-million worth of real estate in their province.

Senator Murray: Nor would most of us.

Mr. Franks: I will pass on where that takes you.

On interim measures, one of the things that Britain has suggested, and I think is actually on the way to being implemented for the House of Lords, is a commission that nominates people for the House of Lords. That is an alternative of my one-third province, one-third Prime Minister, one-third companions of the Order of Canada. I would be comfortable with that if I believed that we could set up a commission that would actually do the job that it should do, and perhaps it can and perhaps it cannot. I do not know.

The precedent of setting up a commission on public appointments, which is in the proposed federal accountability act, does not lead to much optimism about parliamentary or public trust in that process. It is a conundrum, which of course is the reason you can say two things with reasonable comfort: The odds of Senate change are minimal and that it is one of the most interesting things to discuss in Canadian politics because there are so many options at which to look.

I am being very cynical here, but as a political scientist I look at Senate reform as our modern equivalent of how many angels can dance on the head of a pin because it takes an enormous amount of time and energy and does not lead to results. I hope that this will be different because I support the idea of change, but it is a difficult thing to work out a useful package.

Senator Hubley: Rather than repeating some of the issues that have already been voiced here this morning, I should like to add something to Senator Murray's comments on the term that a senator would serve. In my opinion, having 50 per cent of the Senate rising every four years and going out, perhaps waiting to be reappointed — in other words, a dramatic change within the chamber on an ongoing basis — would certainly greatly interfere with the work that takes place in the Senate, the institutional memory of the Senate, the work that takes more than eight years or takes longer than two terms. As governments change, there are times of less activity in our institutions, just getting the vision of the next government in place and committees set up. Therefore, I find that the eight years is a figure that is arbitrary because I do not think it applies in reality to the work we do in the Senate.

There is another point I wish to make on the eight years. Since 1965, if I am correct, the average stay of a senator within the Senate is in the range of 9.5 years. Going from 9.5 years back to eight is a very small change, and I am wondering if it might not come under the term of ``tinkering.'' It may be making a change to satisfy a government's agenda or simply arbitrary and does not reflect the work that we do in the Senate. I will leave it at that.

The number of senators — and this will be speaking again to the motion — while I would like to be generous and say it would be wonderful to increase the number of senators that sit in our chamber, coming from Prince Edward Island and a very small constituency — and I will expand that to the Maritime provinces — any change in a number, increasing a number in one area, will diminish our representation from our area. I do not want to say that we should not do that, but an increase in Western representation will diminish what we have in Atlantic Canada, and I am against that. That certainly would be fundamentally unacceptable to Prince Edward Island, to what was once the Dominion of Newfoundland, now Newfoundland and Labrador.

The number of senators that Prince Edward Island received when it entered Confederation was a term of entry. That was a constitutional guarantee. I was pleased to see that some people did refer back to our beginnings — the Fathers of Confederation, their intention and why those numbers were set down. I think they had importance. They were well thought out; they are numbers that we certainly have to respect. We must be very careful if we are going to change them.

That leads me to a question for Professor Franks. In your presentation, you said that the present distribution — and we will say, in brackets, of Senate seats — reflects historical perceptions and accidents. While you may have another explanation for that, I would like to say that I believe there was wisdom in how our country was set up. It has been a process that has been wonderfully enduring over the years. I had questions on both historical perceptions and accidents and what your reference might have been.

We have said little today about regionalism and the regions of the country. It is easy to say that people vote, but we are talking about populations. Canada is greater than its people. Canada is a country. Because of that we have a sovereignty issue, because of borders, and if we do not address those in the Senate, they will not be addressed in the House of Commons because of the electoral process. If the Senate is not the institution to address those concerns, then I do not think they will be addressed.

You mentioned today the work in committees. I will not repeat the comments about a very fine committee that is certainly in progress in the house.

However, it is the senators on those committees who make the difference in the work that we are doing. That is because we have to have the regions represented within a body in our Parliament.

Mr. Franks: There were a lot of senatorial appointments in the last few years of senators in their 70s, or close to it, which I think reduced the average length of service of senators. I have not done a study that would equate, say, performance in the Senate with length of tenure. I am not comfortable with talking about the difference, but to my mind there is not a huge difference between 10 years and eight years. I find more concern in my own mind about linking senatorial elections and House of Commons elections. That might cause very real problems of getting the same thing over again. Therefore, I will leave that aside.

With regard to the number of senators, I think if we sat down today with no Senate and thought about how many seats Prince Edward Island should have compared with Alberta, we would not agree with four and six; we would do something different. That is what I call a historical accident.

Senator Hubley: You might call it that.

Mr. Franks: On the final point regarding regional issues, I will go back to something I said earlier: Region is simply one identity and one issue that must be presented in politics. There is a cultural identity, an economic identity, a professional identity and there are partisan identities. There are the differences among class identity, knowledge workers, other workers and the artistic community.

Again, if I were starting from scratch, I would be hard put to argue that regional identity is the one issue that must be represented in Senate as opposed to the others, such as gender identity and many other issues.

One of the strengths of the Senate, as I say, is that it has a fantastically interesting and diverse membership under the present process. I would hate to see that lost and to see the membership chained to our views on what identities and what representations there need to be at this date, because those will be different 10 and 20 years from now.

Mr. Seidle: The honourable senator put forward a figure of 9.5 years as the average term of senators under the present system and asked whether the choice of eight years, which she said might be arbitrary, made much difference. In fact, it would not make a lot of difference.

However, I think what is important as a result of this amendment, if it goes through, is that there will be in the Constitution a principle of eight years, renewable or not renewable, and that will be there for all to see.

There is in the Constitution the theoretic possibility that someone could sit in the Senate for 45 years. Although that does not happen very often — and I am sure has never happened, at least not in our lifetime — it is nevertheless what is in the Constitution.

I think it is important, even if senators do not stay for as long as some people might think, if it is going to be brought down, it should not be done through development and so on. It should be clearly stated in the Constitution. I will leave that to other people to debate whether that is tinkering or not.

[Translation]

Senator Chaput: It has always been my impression that when one speaks of changes and considers bills or motions, the ultimate aim is to make improvements of some kind. To my mind, the ultimate goal remains to improve the Senate so that it better meets the needs of Canadians.

My first question has already been addressed. I had some concerns about representation in the Senate. Representation is balanced in that it can be argued the current make-up of this institution ensures that minorities are protected, as per our mission. Among others, members of First Nations, representatives of minority official language communities and women sit in the Senate. One of the Senate's greatest strengths is its representative nature. Change of any kind would have to come with the promise of some kind of improvement.

You did say that it was difficult to address the tenure issue in Bill S-4 without talking about the process. That is why I wanted to mention that institution's representative nature, if we are going to talk hypothetically about changes to the process.

I have a more specific question about the bill and the proposed eight-year term. To my mind, one of the strengths of the Senate is its independence, continuity and presence. MPs may come and go when an election is held, but while communities may have to get acquainted with a new MP, they can always count on turning to the same senator when they have a problem. You were not able to answer that question. In your view, would an eight-year term for senators allow the Senate to maintain its independence and continuity, characteristics that in some respects are very reassuring to minorities, because the majority takes care of itself. We cannot lose sight of the needs of minorities.

[English]

Mr. Franks: Those are very good questions, and I will provide a very small answer.

It seems to me that the more legitimacy and power that the Senate has, the more likelihood that partisanship will increase and the more the government will see a need to control Senate procedures. The more that happens, the less the Senate will have its rather idiosyncratic role of having these particular concerns such as independent members and interests in minorities and all that that entails.

It is a slippery slope, and I do not know where it ends. I feel that we have not yet had in Canada an adequate discussion of what we want the Senate to represent, and I do not think we have had an adequate discussion of how senators will relate to the constituency that appoints them.

One very simple question that should be asked is this: Should senators have constituency offices and resources for service the same as members of the House of Commons? If they are elected, my guess is the answer has to be yes.

[Translation]

Mr. Seidle: Mr. Chairman, the senator has, in my view, raised an important question. If, by creating an elected Senate, the various minorities were no longer represented, this would truly be a loss. There are different ways of tackling these issues. It is not necessarily a matter of guaranteeing that different groups will be represented. There is no such guarantee at present.

In an electoral system based on proportional representation, consider my earlier example of a province with ten seats with ten candidates in the running. Voters choose from a list of candidates when they go to the polls. However, voters have an opportunity to compare candidates before they actually cast their ballot.

Take New Brunswick, for example. If one party nominated only Anglophones out of a list of ten potential candidates, that would certainly lead to some questions and raised eyebrows. Several years ago, there was one party that might have tried to get away with this. Fortunately, that party did not last very long. There is a way to compare lists where everything is clearly apparent. Political parties face pressure to draw up lists much the same way they do for public meetings and so on. A list should be a fair reflection of the province in question.

In provinces like Ontario or Quebec that could have 20 seats, perhaps there could be two large ridings with 20 seats apiece. The possibilities are numerous.

Senator Chaput: Do you believe the eight-year term proposed in the Bill could have an affect on the independence of the Senate? What about a renewable eight-year term of office?

Mr. Franks: It depends on a number of factors and on the process used to select senators, in the case of a system based on proportional representation.

[English]

By itself, I do not think it is offensive. However, the context and other things that affect it could make it offensive and could lead to that worst-of-all-possible world that Senator Murray cautioned about.

[Translation]

Mr. Seidle: I do not know how one would assess the independence of the Senate at the present time. According to the research that I have seen, senators most often tend to vote along party lines.

Although these days independence is a very important quality, there are other qualities that must also be taken into account, such as the Senate's representative nature, credibility and legitimacy. Bill S-4 should contribute in a modest way to the credibility of this institution.

Therefore, when contemplating any kind of institutional change, it is important to consider values and objectives. There is never only one single objective. If we look at the preamble of the proposed reform legislation, we see that a number of objectives are listed.

Senator Dawson: Further to the question raised by Senator Angus this morning, regarding the 24 Senate seats in Quebec, the reason for the $4,000 requirement in 1867 was to ensure that the 24 senators came from 24 different regions in the province. No one bought property worth $1 million for the mere pleasure of serving as a senator in Ottawa. Today, if we look at the average situation over the last 30 years, between 20 and 22 senators come from Montreal, not from the regions. Occasionally, some may hail from Quebec City, because the provincial capital is growing in importance, but even though there are some exceptions, like Senators Watt and Gill, historically, irrespective of party affiliation, Senate appointees were from Montreal.

A senator's role was therefore to protect, defend and promote the regions, maybe not always for the right reasons, because a person had to be millionaire to be appointed to the Senate. Most likely there are still some senators today who fall into this category, but far fewer than was once the case. The objective was not to appoint individuals to protect the financial establishment, but rather to ensure that all regions, even far-flung ones, had a voice.

My second question is further to a query from Senator Segal about the appointment by Mr. Mulroney of an elected Senator from Alberta. Mr. Mulroney had also agreed to appoint senators, drawing from a list of individuals recommended by Mr. Bourassa. He had indicated that out of respect for the provinces, he would go along with their recommendations and appoint senators. Therefore, we need to see if there is some way to respect the wishes of the provinces. If some want to elect their senators, then they should be free to do so. If other provinces, like Quebec, choose to have their senators appointed by the legislative assembly, then that approach warrants some consideration.

Mr. Seidle, I would like to come back to the question of the process to be followed to achieve reform. For a long time, electing senators was considered to be the first step in the process. This government has said that its priority is to have senators elected to office. It remains to be seen how this will be done, what kind of tenure they will have and where they will go with this. I agree with you. It is more important to know what the ultimate outcome will be than to know what the various stages in the process will be.

Three months ago, there was a shift in the government's agenda. Now, the focus appears to be on limiting Senate terms to eight years. We do not know if this would apply to elected senators (perhaps we will have the answer to that question tomorrow) or to senators appointed by the government from a list of possible appointees following a province-wide consultation. What we do know, however, is that there has been a shift in the agenda.

I would like to know if you think we can continue to change the stages in the process or if, in the long-term, we need to decide what fundamental changes need to take place in the Senate? We can change the appointment process and review the mandate, but above all, we need to ensure that the powers shared by the Senate and House of Commons remain compatible.

I have had the pleasure of serving in both chambers and I respect the fact that senators have limited powers. However, if I was elected to a specific term of office, whether it be four years or eight years, I would have a vastly different perspective on my role as a senator. To my way of thinking, this is a fundamental question that needs to be addressed at the very start of the process, even before we move on to deciding whether or not senators serve a term of eight, seven or even nine and a half years.

I doubt that many senators in office would have turned down their appointment if the Prime Minister had told them they would be serving for ``x'' number of years. Most likely some would have said no, but I for one can honestly say that if the Prime Minister had called me last year to offer me a term of eight years (I have no idea how Senator Segal would have answered the question) I would have said yes, I am ready to serve Canada's Parliament as a senator for a term of eight years.

However, above all, I accepted the appointment knowing full well that very clearly rules were in place and that my powers were limited. As the situation has evolved over the past several months, I am realizing that the rules are being altered to suit the short-term political aims of one party. This worries me a little. The fundamental changes provided for in the Meech Lake Accord came about as a result of a multi-party approach. A consensus prevailed. We are now in a situation where a minority government that has not consulted the provinces has tabled a bill and has told us that because it does not like the rules in place, it is prepared to change them.

Therefore, my first question is as follows: Are we starting at the right stage, or should our focus lie elsewhere? For example, should we be settling once and for all the matter of an elected Senate?

Should we not know what the role of this reformed Senate is going to be? Furthermore, might we have a different opinion of an eight-year term if senators were appointed rather than elected?

Whether we are talking about the CRTC or the Immigration Commission, I am convinced that when a person serves on a quasi-judicial commission and hopes to be reappointed when his term of office has ended, their feelings about quasi-judicial independence changes as the date of their reappointment to a new term of office approaches.

With all due respect for those who would be appointed to an eight-year term, I am convinced that at the end of their seventh year in office, they would be far more pleasant with the prime minister in office than they would have been with the incumbent during their first year on the job.

Mr. Seidle: I have already said what the first stage in the process should be and what the ultimate objective should be as well. Tomorrow the committee will be welcoming a distinguished guest who will be better able to answer this question.

I would like to make two brief comments about land ownership in Quebec. I agree that the reasons for this were set out at the time of Confederation. I cannot say whether or not, as you maintained, 20 of the 24 senators come from Montreal, but the fact that a person owns $4,000 worth of property somewhere does not necessarily mean that that person comes from that particular region.

I have nothing against Senator Fortier, but is he from Rougemont? According to what I have read about him, he is from Montreal.

Regarding the appointments made by Mr. Bourassa, when he submitted the four names to Mr. Mulroney, he did not wait four years. He made the appointments immediately. These included two very distinguished individuals, Ms. Chaput-Rolland and Mr. Beaudoin, who recently retired.

[English]

Mr. Franks: I just express the cautions that I have before, that any reform has unexpected and unintended consequences and that one should ensure that the benefits exceed the costs. I am not sure how we can do that one step at a time. We have to look at a package in order to ensure that. Once we start looking at a package, we are in the Canadian death wish of constitutional reform, the escalating warfare between provinces, between regions, between the federal, provincial and everyone else, the screaming contest for ``me, me, me and my rights,'' that ends up with something that satisfies no one and leaves an unpleasant feeling.

Senator Fraser: I want to make one quick comment before going to questions, with regard to the divisions in Quebec and the property qualification.

Dr. Seidle's interesting proposal that we abolish the property qualification and have people required to live in their division would have consequences of its own. Two come to mind. First, you would then have huge disproportion between the populations of the divisions. You would have some senators representing a million or more voters, if we go to an elected Senate, and some representing maybe only 50,000 or 75,000. Of course, the north half of Quebec would not have any senators at all, because it was not part of the province when that famous map, whose existence is very difficult to track down, was drawn up.

Second, it is my understanding that a key reason for having those divisions in the first place was to ensure the representation of English Quebecers, the language minority in Quebec, in this body, and I think it very unlikely that you would see any more of them or very many more of us appearing here.

That is just a comment. Right or wrong, it is just about the endless consequences that ensue when you change any element of the parliamentary system.

I want to ask you both about this question of the fundamental characteristics of the Senate, about which there has been some discussion already. The Supreme Court, in the famous reference, said, among many other interesting things, that it is clear that the intention of the founders was to make the Senate a thoroughly independent body which could canvas dispassionately the measures of the House of Commons. That is just about a direct quote from one of the fathers, I think George Brown, but Macdonald and others said very similar things.

The Wakeham commission has stressed the need for independence to be preserved in any reform of the House of Lords. Even the bill before us, Bill S-4, says in the preamble that Parliament wishes to maintain the essential characteristics of the Senate within Canada's parliamentary democracy as a chamber of independent, sober second thought. Therefore, whatever other characteristic may or may not be essential, would it be your view that the capacity to exercise independent thought would be one of those characteristics?

Mr. Franks: The older I get, the more cynical I get. It is perfectly possible that the content of the proposed act and the expressed intent of the proposed act are in conflict. As we have discussed here, there are circumstances, such as if this were the end of it, in which the likelihood of sober second thought would be reduced. It is easy to say that you take one step at a time, but if it is it a range of steps in which each step is slippery and you do not know what the next step is and you do not know where the end of the journey is, embarking on that journey is a risky process.

Mr. Seidle: On the question of exercising independent thought, in theory that is very much something that should be preserved as a characteristic of the Senate. I do not think, though, the word ``independent'' necessarily has the same meaning to everyone who might be looking at this.

I also think that the meaning at the time of Confederation and the meaning we might give to it now are probably somewhat different. At the time of Confederation, there were not organized political parties in the way that there came to be by the end of the 19th century and that we have known ever since.

If indeed the word ``independent'' meant non-partisan, why are there not more senators who sit with the label ``independent''? I am not sure how many there are at the moment — perhaps three or four, and some have double- barreled labels such as Independent Liberal and that sort of thing. Yes, I think it should be important to keep that characteristic, but the word ``independent'' may also mean alternative, enlightened, informed, which might be words that characterize some of the committee work. ``Independent'' does not mean completely apart, non-partisan, the equivalent of a court sitting within Parliament. It has various shades of meaning that are relevant to the question before us.

In response to your first comment, Senator Fraser, about the consequences of changing any one element, if we kept to that dictum, we would not have a Charter of Rights and Freedoms in Canada. We would not have protection of official language minority rights. We would not have quite a lot of things. I would not suggest that Bill S-4 is a bold step forward, because it is a modest one, but if we blink at that one, certainly we will never get to my vision of what the Senate ought to be at some point.

Senator Fraser: I should reiterate here, as I have already said in the chamber, that for a long time now I have been in favour of term limits, which is the subject of this bill. Whether the precise avenue taken by this bill is the appropriate way to go is a separate issue, but I do not dispute that any change is, to some extent, a leap into the unknown. However, we can at least take into consideration some elements as we move forward.

I was asking about independence because of the point you raised, Dr. Seidle, about renewability. It would seem to me that independent sober second thought in the context of a body like the chamber basically comes down to requiring that senators be able to exercise their best judgment without being beholden to anyone and, in particular, to political powers, which is why I, like you, was very surprised to learn that renewable terms were part of the package. It does seem to me, this being one of the most wonderful jobs in the world, that many senators would want very much to keep their jobs and be reappointed and, therefore, would be doing their level best not to irritate the person with the power of reappointment.

It has also seemed to me that an eight-year term, whether or not renewable, might be a bit short, but particularly if renewable, in that quite a number of Prime Ministers serve for more than eight years. A Prime Minister who is in office for nine years would have appointed every single member of the Senate then sitting, once this system were fully in flow and if we did not have a move to an elected Senate, and would be faced with a large number of senators who are trying to get this same Prime Minister to reappoint them. In that context, do you think a longer term would be preferable or not?

Mr. Seidle: I could not say better than you the risks of renewable terms. To me, it is, in a sense, a Trojan horse behind this legislation. If you look at the stated policy objectives in the preamble and you pair that with the potential pitfalls that you so eloquently described, it seems to me there is a great clash there. I am not sure how the independence that people around this table seem to hold so dear would fit with the renewability of terms. I really do not think that extending the term somewhat, let us say 10 years, would make a very significant difference. The cardinal point is that people will have the opportunity, if they desire it and if they find this job to be a comfortable one, as you describe it —

Senator Fraser: Not comfortable, just wonderful.

Mr. Seidle: That is your adjective, a better one than mine. They will have the opportunity to act in such a way as to encourage their reappointment, and I will not go further than that. I would strongly recommend, as I said earlier, that the bill be amended to state that these are non-renewable terms.

Mr. Franks: We are talking about two different scenarios here. Scenario one, which I would suggest that both Dr. Seidle and you, Senator Fraser, are talking about, is where the only change is to the terms of senators. Scenario two is where a change to the terms of senators is linked to a change of method of appointment. If it is the second, I do not see any problem with eight-year terms whatsoever. If it is the former, I am at a loss to suggest what term it should be.

Senator Austin: I want to ask you whether either of you support the Burt Brown-Link Byfield Triple-E Senate proposal.

Mr. Franks: The short answer is the same as my long one: No.

Mr. Seidle: I support all the elements except the equal. The only sensible route for Canada is a formula similar to that of the German Bundesrat, which we refer to in political science as ``weighted representation,'' where the smaller units get somewhat more or perhaps a good deal more than they would under rep by pop and the big units get somewhat less or a good deal less than they would under rep by pop. In the German Bundesrat the numbers are three, four, five, and it works within that set of parameters.

Senator Austin: The second point was the one Senator Segal addressed as his first point and I put it in a more constitutional format. The judicial norm is that you cannot do constitutionally indirectly that which you cannot do directly. The idea, therefore, of one senator being chosen from a list, which is essentially a referendum as to choice, or a new system of a repeat of that set of processes, changes the constitutional character of what is being proposed.

Do either of you have any comment on that point?

Mr. Seidle: I would link it not so much to the character of the Senate but to the amending formula and repeat my comment from earlier, that although the letter of the amending formula might be respected, the spirit may be called into question because the pressure will be on the Prime Minister to appoint the person first from the list. That person will consider himself or herself to be elected, that person will have a popular mandate. I do not have to follow through the logic of what all this may mean. It is a question of concern about trying to elect senators through the action of Parliament alone.

The Chairman: It is often the case that we conclude our meetings anxious to continue. If the Senate does good work, as both of you have said we do, it is in large part because of the willingness of people such as yourselves to come before committees of the Senate and to assist us with your wisdom and comments.

On behalf of the committee, our sincere thanks for your contribution to our work that is before us now on Bill S-4 and the motion moved by Senators Murray and Austin.

As our first witnesses, it is remarkable that we got off to a start so complete and fulsome in terms of the matters covered.

The committee adjourned.