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Proceedings of the Special Senate Committee on
Senate Reform

Issue 2 - Evidence

OTTAWA, Thursday, September 7, 2006

The Special Senate Committee on Senate Reform met this day at 2:03 p.m. to examine the subject-matter of Bill S-4, to amend the Constitution Act, 1867 (Senate tenure), and the motion to amend the Constitution of Canada (Western regional representation in the Senate).

Senator Daniel Hays (Chairman) in the Chair.


The Chairman: Order, please. I want first to welcome our guests and our viewers to this second meeting with witnesses of the Special Senate Committee on Senate Reform.

For the benefit of our listeners, I'll explain briefly the purpose of our work. Last June, the Senate asked our special committee to examine Bill S-4, the government proposal to set the tenure of future senators at eight years, and the motion of Senator Lowell Murray, seconded by Senator Jack Austin, to increase western provinces representation in the Senate.


To learn more about the work of the committee, I invite viewers to visit the committee's website — the address can be seen at the bottom of your television screen.

Today we are privileged to have as our first witness, Prime Minister Stephen Harper. This is the first time that a sitting Prime Minister has appeared before a Senate committee. We are pleased that he has come before our committee and we are most anxious to hear his views.

I invite the Deputy Chair of the Committee, Senator Angus, to say a few opening words, after which we will hear from the Prime Minister.


Senator Angus: Thank you. It is a pleasure for me to add a brief word to welcome our Right Honourable Prime Minister at this historic moment.


In welcoming you, sir, to this Special Senate Committee on Senate Reform, I feel comfortable in saying that we are all most interested in the important subject of Senate reform and renewal, and the potential processes for implementing useful changes over time.

We are well aware of your long-standing interest in and commitment to the matter and we are delighted that you have decided to share with us your vision of reform, generally, and the reasons behind your government's Bill S-4, particularly.


We will listen to your comments with great interest. We appreciate a lot that you are here today and that you have agreed to answer our questions after your presentation.

The Chairman: Once again, welcome, Mr. Prime Minister. Please go ahead.

The Right Honourable Stephen Harper, P.C., M.P., Prime Minister of Canada: Thank you, Mr. Chairman.

Good afternoon everyone. First, I want to thank the honourable senators, for this opportunity to speak today on the issue of Senate reform. I understand that, as you just said, this is the first time that a sitting Prime Minister has appeared before a Senate committee. This underlines my interest in Senate reform. As we have little time and our subject matter is important, I will stick to the essentials.


As everyone in this room knows, it has become a right of passage for aspiring leaders and prime ministers to promise Senate reform on their way to the top. The promises are usually made in Western Canada. These statements of intent are usually warmly received by party activists, editorial writers and ordinary people but, once elected, Senate reform quickly falls to the bottom of the government's agenda, nothing ever gets done and the status quo goes on.


Honourable senators, this has to end for the Senate must change and we intend to make change happen. The government is not looking for another report but is seeking action.


Honourable senators, years of delay on Senate reform must come to an end, and it will. The Senate must change and we intend to make it happen. The government is not looking for another report — it is seeking action that responds to the commitments we made to Canadians during the recent federal election.


As you all know, we made a commitment during last election campaign that, if we were elected, we would proceed with a Senate reform. I came here today to reiterate personally my commitment to reform this institution.


Such reform will make the Senate more democratic, more accountable and more in keeping with the expectations of Canadians, who, as we all know, are not at all satisfied with the status quo.

Honourable senators, I believe in Senate reform because I believe in the ideas behind an upper house. Canada needs an upper house that provides sober and effective second thought. Canada needs an upper house that gives voice to our diverse regions. Canada needs an upper house with democratic legitimacy, and I hope that we can work together to move toward that enhanced democratic legitimacy. A modest but positive reform would be the passage of Bill S-4 by the Senate. Bill S-4 neither promises full-scale Senate reform nor will it deliver such, but it does represent positive change by limiting senators to eight-year terms.


An eight-year term for senators would be virtually the equivalent of the term of two consecutive majority governments. I think this is a fair proposal which does not offend the common sense of the Canadian people.


The fact that senators can be and occasionally are appointed for terms of 15, 30 or even 45 years is just not acceptable today to the broad mainstream of the Canadian community. This practice has few parallels in western democracies in the 21st century. Therefore, we should act.

The government believes that Bill S-4 is achievable through the actions of Parliament. Honourable senators will know that the 1984 Molgat-Cosgrove Report on Senate Reform not only made a similar recommendation regarding term length, but also confirmed that such a change was achievable without using the general constitutional amending formula. As senators know, the Molgat-Cosgrove report called for a slightly longer term of nine years, rather than the eight years proposed in Bill S-4. I believe the Beaudoin-Dobbie report may have called for a six-year term.

A government can be flexible on accepting amendment to the details of Bill S-4 to adopt a six-year term or an eight- year term or a nine-year term. The key point is this: We are seeking limited, fixed terms of office, not decades based on antiquated criteria of age.

I have carefully reviewed your deliberations on the bill. Some senators have said the proposed legislation goes too far; others have said it does not go far enough. However, we can all agree on one thing: It does go somewhere, somewhere reasonable and somewhere achievable. I would ask senators, when you resume sitting at the end of the month, to bring your deliberations on Bill S-4 to a successful conclusion because the Senate must change. Canadians will be watching to see whether the current Senate will make itself part of the process of change.


As I already said, this legislation proposes a modest reform. We must do more and the government is committed to moving ahead.


As yet another step in fulfilling our commitment to make the Senate more effective and more democratic, the government, hopefully this fall, will introduce a bill in the House to create a process to choose elected senators. This bill will further demonstrate how seriously the government takes the issue of serious Senate reform.

In conclusion, I would like to read a quote from a book I reviewed recently. Let me quote it:

Probably on no other public question in Canada has there been such unanimity of opinion as on that of the necessity for Senate reform.

Some of you will know the author is Robert MacKay. The book is titled The Unreformed Senate of Canada, and the quote, my friends, is from 1926.

Honourable senators, this institution, the Senate of Canada, must change.


Honourable senators, this institution, the Senate of Canada, must change for real. I hope you will join the government and the Canadian people, and come on board to constructively bring about this change.


Passage of Bill S-4 would be a modest move forward. After that, we will continue to move forward with further proposals as part of our plan to give Canadians the accountable, democratic institution they desire and deserve. Thank you.


Mr. Chairman, I am here until 3 p.m. to answer your questions.

The Chairman: Thank you for your presentation, Mr. Prime Minister.


We will follow a procedure. As the critic of the bill, I will ask the first question, Senator Angus will ask the second and then we will go to members of the committee. If there is room after members have been heard with their questions, then we will go to senators present who are not members of the committee.

Mr. Prime Minister, your presentation is much appreciated and, together with your presence here, demonstrates the serious intent you have about the matter of parliamentary reform — in particular, involving the Senate.

My question goes to your comment that it is a step going somewhere, and you are quite right. However, we are left to speculate on what you see as the direction of the reform initiative in general. In other words, we are taking a step if we were to pass this bill which is before the committee. I am the chair, so I am keeping an open mind on it deliberately until such time as we get further along.

However, I will make this comment. Eight years seems to make sense, as you said in your presentation, for an elected Senate, but not so much sense if nothing else changes. Although we are not sure, we believe it is a renewable term because the Leader of the Government has so indicated. We will be looking into this as well, but it does not make so much sense to simply shorten the term, with nothing else. It begs the question of what else, and this is a step toward where or what further change.

I am not sure whether or not you are ready to provide any details; but if you are, it would be very helpful to this committee. Without it, we are left to speculate and that makes our task very difficult.

I believe it is the intention of the government, as well as the intention of Parliament — and at this point the matter is before this house of Parliament — to bring Canadians generally into the picture. The Constitution is the most important law of the country, and Canadians generally should be aware of any change. There should be some indication, either through premiers — or most likely through premiers — of an acceptance of such change in the fundamental law of the land.

Your comments would be appreciated, Mr. Prime Minister.

Mr. Harper: First, as I indicated in my remarks, Mr. Chairman, obviously the government believes that the Senate should be elected; and we will, I would hope in the near future, be taking steps toward beginning that process. I dare say I think in recent years just about anyone who has concluded that the Senate should exist, should be effective, should fulfill the various functions it is supposed to fill, including representation of regional perspectives, would agree that would mean an elected chamber. Obviously, there are a few dissenting voices, but that is obviously the next step in the process.

I do not know how much I would want to elaborate beyond that because our position is that this particular change does stand or fall on its own merits — and that it is worth doing. The government has proceeded with this proposed legislation first because it believes Parliament can act, without engaging other levels of government in a complex constitutional discussion or amendment process. Quite frankly, I would put it to you that terms of this duration, even if nothing else happened, would enhance the legitimacy of the Senate.

Honourable senators would all be aware that despite the 1965 amendment, many Canadians still refer to senators as ``lifers'' and as having ``life terms'' and these kinds of things. The fact of the matter is if that amendment had not gone through, I think the bad publicity the Senate sometimes gets would be worse today. Therefore, I think shortening the term, to the extent it has been shortened, has enhanced it. I think it would be enhanced further by having a fixed term of a more reasonable duration.

One of my predecessors ensured there would be more of a turnover in new blood in the Senate by simply appointing people who were very old. I do not think that is necessarily the best way to achieve the same thing. I would argue that this change will certainly not end the demand for Senate reform but, in and of itself, would increase the turnover of the Senate without jeopardizing the effectiveness of its members generally; and I think that would enhance its image.

Senator Angus: Prime Minister, I gathered from your remarks that you would like senators and the Senate to be part of a process of renewal and reform. I can only imagine that is why you have had Bill S-4 introduced in the Senate so that senators would have an opportunity to participate in the process. I am sure we all welcome that, rather than having some third body or party dealing with the fate, if you will, of the institution.

I understand that Bill S-4 is but a first step in a staged process of reform. We have heard witnesses here, as you know — you indicate you have followed our deliberations closely. There have been many writings on the subject and it is clear that there are opponents to the idea of a staged process. What is the alternative to a staged or step-by-step reform process? How would it unfold if an alternative were taken?

Mr. Harper: Thank you for the question, Senator Angus. There are three general paths we could go down. The two alternatives to step-by-step reform are, first, maintain the status quo; and, second, an attempt at comprehensive reform through, in a sense, mega constitutional negotiations.

On the first alternative, the people of Canada believe that the status quo is not acceptable and, perhaps more pertinently, it is not compatible with the commitments that this government made to the people of Canada in its election campaign.

My observations over the last 20 years of federal-provincial politics, despite my relatively young age, are such that I do not see comprehensive Senate reform achievable today, except, perhaps, one kind of comprehensive reform — abolition. For that reason, I would urge all senators on this committee to conclude that step-by-step reform is the preferable way to proceed.

Senator Austin: Prime Minister, I add my welcome to that of my colleagues and move on because the time is short.

One issue that concerns us is the constitutionality of Bill S-4. We must deal with that before we can move on to the desirability of taking this step at this time. The Constitution is what governs this country and we must all respect it.

My question is not to ask you for a constitutional opinion, Prime Minister, but you have said that you believe there is a constitutional basis for Senate reform. I would ask whether you have consulted with the provinces in respect of Bill S-4 and, if so, have you received responses either in support or deferring views? I know that the Intergovernmental Minister of Quebec, Benoît Pelletier, has said that he is not convinced it is constitutional. We have heard other views from constitutional advisers, some of whom say that it is constitutional, some say it might be and some say it is not. What advice can you give the committee vis-à-vis the provinces and Bill S-4?

Mr. Harper: In terms of the constitutionality of Bill S-4, I will answer the question but, perhaps, not in detail. The government is firm in its view that this is a constitutional measure and that the operative point is the comprehensive amending formula adopted in 1982. That formula says that the Constitution of Canada in respect of the Senate can be amended by the Houses of Parliament with four exceptions, and this is not one of them. The government is very clear on that view.

The government has not had a comprehensive consultation with the provinces on Bill S-4, although some informal consultations on the issue of Senate reform in general have been done. I am not aware of any objections to the bill. I have consulted Premier Charest directly on the proposed legislation before it was tabled in the House. As senators are aware, his public comments and his private comments are that he has no objection to the bill. I am not aware of any premiers suggesting that they want to resist the government moving in this direction on this proposed legislation. Senator, I am not aware of any body of opinion outside the Senate that has suggested we should resist this particular change.

Senator Austin: The issue is not that the change is being resisted, but rather it is whether the Constitution permits us to make this change. As former Senator Lynch-Staunton used to remind us: If there is any doubt about a constitutional change, do not try it. It would be an enormous mess if the court were to find that it was not constitutional to make the change. That is one of the questions before the committee.

My next question relates to whether the length of term, for example eight years, would be subject to a repetition of appointment for another eight years. What is the government's purpose on that topic?

Mr. Harper: As you know, Bill S-4 is silent on that question. By its silence, you can presume that it means there would be the possibility of renewal. I have listened to the debate in the Senate, and to some degree in this committee, with great interest on that point. I will be frank in saying that I tend to think of a future Senate in terms of it being an elected body. For that reason, I tend to automatically reach the conclusion that renewability is desirable. I would say to this committee that if senators conclude that renewability is not desirable, whether for constitutional or other reasons, certainly the government would be flexible in making that amendment so that the terms would be non-renewable. The government can live with it either way.

Whether renewability would inhibit independence is the debated question. In my assessment of whether senators would alter their behaviour in light of a renewable term, I tend to dismiss that. In my experience, whether members of either House are willing to work with the government is determined first and foremost by their party affiliation. That is not likely to change whether the terms are renewable or otherwise. That is my take on human nature as it pertains to the legislative process.

Senator Tkachuk: Prime Minister, it means a great deal to me that you are attending this committee meeting on its pre-study of Bill S-4. As Senator Austin said, in this way you are showing a great deal of respect for the Senate as an institution and its members.

My question concerns accountability, a term that was used extensively in the recent federal election and a word that you mentioned in your opening statement before the committee today. I did not hear the word mentioned yesterday by either the witnesses or senators in yesterday's meeting of the committee.

Could you explain how Bill S-4 fits into your vision of accountability for Canadians? Is it necessary to have elections to have accountability or will Bill S-4 fulfil your vision of accountability?

Mr. Harper: Senator, I believe that the passage of Bill S-4 would not achieve the kind of accountability that the Senate and other legislative bodies require. Anything short of a democratic electoral process would fall short of what we ultimately need on accountability. A fixed term of eight years, which would lead to renewal, would present us with less danger of ossification and could limit the number of senators who, over time, become less effective and less interested. In that sense it would improve accountability but, in and of itself, it would not get us to where we want to go.

Senator Tkachuk: Have you canvassed the provinces to know their views on the election of senators? Would the process be national or could some provinces opt for appointed senators and some opt to elect senators?

Mr. Harper: I think there has been insufficient clarity of reporting on the government's position from the recent campaign. We desire a national process for electing senators rather than a province-by-province process.

I view the Senate properly structured as an important national institution, not a federal institution, not a provincial institution. There is no doubt that to change the process in a formal constitutional sense — to making senators elected — would require provincial consent.

The government would be seeking to have the ability to consult the population before making Senate appointments. Obviously, this is an interim step of democratization but we think it would be an important one.


Senator Dawson: Mr. Prime Minister, we appreciate enormously you being here today and I respect your commitment towards constitutional reform. To use the Quebec term, it has been your ``dada'' for 15 years, and I understand that this is very important for you.

But for 15 years, you have always been talking of an elected Senate, and even your leader in the Senate told us, at the beginning of the Speech from the Throne, that the priority of this government is to table a legislation for an elected Senate.

All of a sudden, the first bill which is tabled is not for the election of senators but for eight-year terms for senators. I like to respect your word, your commitments, but the Constitution is stronger than your word.

You are saying: I see that in terms of elections. But if you accept the eight-year term, this would mean that Mr. Trudeau, Mr. Mulroney and Mr. Chrétien, if they had had the Constitution as you interpret it, Mr. Trudeau could have appointed 200 senators, because he was there for 16 years. Mr. Mulroney could have appointed a fully conservative Senate without the least opposition. And Mr. Chrétien could have appointed about a hundred senators during his term, thus controlling completely the second house.

It is obvious to me, Mr. Prime Minister, in spite of all the respect I have for your word, that if we pass this bill as it is written, without having control through election, and if you have the right to renew your senators, you will have much more power — and several people say that the Prime Minister's Office already has a lot of power — than Mr. Mulroney, Mr. Trudeau or Mr. Chrétien had in the past. It seems obvious to me that as protectors of the Constitution of Canada, we wish to trust your good faith, your commitments. Incidentally, we expected a conference on taxation for this Fall, but this changed. I like to respect your word. You had said that you were going to have the senators elected and the first thing you did was to appoint a senator to the Cabinet. And he is now part of your government. It is the first move you made.

I like to think that I have to respect the Prime Minister's word, but we are in a minority government situation. Do you think, Mr. Prime Minister, that we can trust, just on your word, that senators will be elected and that they will remain only eight years, or that you will be able to have a power that neither Mr. Trudeau, nor Mr. Chrétien or Mr. Mulroney had in the past?

Mr. Harper: Senator Dawson, I assume that your speech indicates support for the election of senators in the future. I'll watch much more closely your reaction when we table a legislation for such a purpose.

However, I must say that this government appointed a senator for a clear reason: ensure a representation of the Montreal region in Cabinet, and this senator will leave his seat at the next election to obtain a seat in the House of Commons.

There are still nine vacant seats for senators. I do not intend to appoint senators, unless necessary. But I can tell you that the government intends to table a legislation to create an elected Senate.

Senator Dawson: I would like you to answer the question on the power the Prime Minister would have had to give himself a Senate under the present powers, if he had it over a period of sixteen years, in Mr. Trudeau's case, or of eight or nine years, in Mr. Mulroney's case. For the time being, I want to respect your word, I do not want to question it, but you are in a minority situation. If ever you are defeated at the next election and next Spring you have not passed your legislation on the election of senators, the next prime minister will then be able to appoint as many senators as he wants, for the tenure he wants. I would like to now if this committee has a firm commitment from you. But you had said that you would not appoint senators. Incidentally, there is a vacant seat in Repentigny.

Mr Harper: Of course, Mr. Dawson, I think this bill limits the power of the Prime Minister to appoint a senator. A senator can be appointed only for eight years and, as I have just said, if this committee is concerned about the power, the right to renew the terms of senators, the government is prepared to accept such an amendment, such a suggestion from the committee. But I must say that my constitutional powers, during the next few years, will remain more or less the same. The Prime Minister has today the power to appoint senators. This doesn't change except with a constitutional amendment.

The reality is that, even with this bill, the term of present senators will continue until the age of 75. I think that, in the future, the Prime Minister will have members of the Senate who will change more quickly than today. But this is not yet the case for several years.

Senator Comeau: Welcome here, Mr. Prime Minister. I don't know if you heard the comments on a proposal before this committee concerning a deposition made by senators Austin and Murray concerning a resolution aiming to address the issue of regional imbalance in representation in the Senate.

The proposal is that British Columbia and Alberta have more seats and that British Columbia becomes a region just as the other existing regions.

Could we have your comments on that proposal? Is it a means through which we will be able to address this regional imbalance?

Mr. Harper: I can only say that we recognize the imbalance in existing representation. In the future, we will have to address this problem but at the same time, the government has to choose a staged approach. We began with the easiest step, where we can do things here, in Parliament, and we can gain a large support for change from the people.

The issue of the representation of each province is perhaps the most difficult issue in the debate about Senate reform and for this reason, the government did not start with this step. The government started first with the terms and secondly with an election process.

But I must note that, concerning Bill S-4, the government's position is clear, and I think that even honourable senators Murray and Austin are clear. We need the support of the provinces and the use of the general constitutional amending formula. In such a case, we do not need the voice of the Senate. Ultimately, the power of the Senate is a suspensive veto. And it is not necessary to consult the Senate for such a change. It is necessary to consult the provinces.

Senator Comeau: I agree, Mr. Prime Minister, to say that the measure proposed through Bill S-4, namely a tenure of eight years, is rather modest. But the population still thinks that this is a very important matter.

What will happen if the senate rejects the modest measures proposed through Bill S-4?

Mr. Harper: This will suggest to the population that any change is difficult, impossible or even that the present Senate is not able to take part in such a reform. I think there would be political consequences to such a situation.

Senator Murray: As you know, Mr. Prime Minister, the issue of the imbalance in representation in the Senate is not easier to address than that of the fiscal imbalance.


Senator Austin and I believe we have a proposition that stands on its own merits, that even if nothing else were done about the Senate, it would be important to correct an inequity from which Western Canada suffers in representation. That is our view.

Far be it from me to put words in your mouth, but I would hope that if that resolution passes the Senate, we would send it to the other players in the process. We do have the right to initiate, as you know, a constitutional amendment. That is what we are trying to do.

If it passes the Senate, we would send it to the provinces and, of course, to the federal government. Everybody would have three years to make up their minds as to what to do, to pass it or not. I would hope that the federal government would not close the door or threaten to interpose your veto, at least until you see what measure, if any, of provincial consensus exists for our amendment. Would you go that far?

Mr. Harper: Senator Murray, what I would do with such a suggestion, were it to come from the government, is I would actually consult the provinces first rather than later to see whether there was a chance of success. I think we all know the experiences of constitutional reform — particularly ones that involve federal-provincial discussion. I am concerned that, in the future, we not get too far down any path unless we think we have a pretty good chance of success.

If you are asking me indirectly what are my views on the merits of the proposal you have put forward, I do not have to tell you that I think anything that would improve the Senate representation of the smaller provinces, and of the West in particular, is a good thing.

Would this particular proposal be seen as addressing the imbalance? Frankly, I doubt it because I see some fairly obvious problems with it. The most obvious is that Saskatchewan and Manitoba, for instance, which have a greater population than Nova Scotia and New Brunswick, will continue to have fewer senators than those two those provinces. It is certainly an improvement, but that is difficult to justify as any kind of end point, even temporarily.

Senator Murray: Let us see what happens. Do not interpose your veto until we see what level of provincial —

Mr. Harper: It is not clear, senator, as you know, that I have a veto. According to the Regional Veto Act, I may or may not have to go to the provinces first.

Senator Murray: The Regional Veto Act applies only to constitutional amendments introduced by a minister of the Crown, of whom Senator Austin and I are not one.

Mr. Harper: Right. My point is that in the House it obviously could not, at least according to the Regional Veto Act — and we could have a discussion about the constitutionality of it — a minister of the Crown in the Commons could not introduce the measure.

Senator Murray: But somebody else could.

Senator Hays: Senators, I still have on my list Senator Munson, Segal and Chaput without quite enough time for five minutes each. Bear that in mind.

Senator Munson: Prime Minister, welcome. I cannot help myself; once a reporter, always a reporter. You suggested in French that there would be political consequences if the Senate said no to an eight-year term.

As you know, we are studying the proposed accountability act and Senate reform in a serious way and there may be amendments. It may take some time and it is serious work. There are critics who believe you would like nothing better than to fight an election on the backs of the Senate.

Mr. Harper: Well, do not give me the opportunity.

Senator Munson: There will be political consequences then.

Mr. Harper: What there would be political consequences on, if we could go back to my answer in French, is if the population were to become thoroughly convinced that any kind of Senate reform were impossible. Given that the government is committed to Senate reform, we have to look at how to proceed.

The Senate has a job to do on this. I have indicated to the committee already that on a couple of significant points, the government is open to your ideas and amendments.

On the proposed federal accountability act, the Senate traditionally has the role of review of legislation. However, I think you all understand the importance of that piece of legislation to the government's program and to the Canadian population at large.

Senator Munson: Just briefly, you do sound like Mr. Trudeau when he said, ``Just watch me.'' At the same time, you talk about creating a process this fall, yet all we see now is a path for an eight-year term to some place we do not know where we are going. I am wondering if we are leading, in this reform, to the Americanization of the Senate.

Mr. Harper: I wondered when that particular line would come up.

I do not think the Americans have any particular monopoly on democracy. I think it is as Canadian an idea — in fact, it is an idea now shared by a growing number of countries in the world. They virtually all now elect their legislatures.

Senator Segal: Prime Minister, you were good enough to make reference to introducing legislation in the fall with respect to some public involvement in the electoral process with respect to the Senate.

I ask you to reflect for a moment, assuming that piece of legislation is successful and that Bill S-4 is successful, and we find ourselves in the proximate future with a Senate composed more and more of elected individuals who have eight- or nine- or ten-year terms as the case may be. Depending on how that process is determined, they may feel they have far more clout than members of the House of Commons, that they have been elected from a broader base.

In terms of balance between the two Houses, I think it is fair to say now that, by and large, the tradition in the Senate — for good and substantial reason — has been to accept that the House is where the critical decisions are made. That is where democracy is expressed; that is where the government receives its confidence over a period of time. Can you share with us your view on how some of that balance issue might be addressed going forward, assuming Bill S-4 was successful and that whatever is proposed by the government in good time with respect to the electoral process is also successful?

Mr. Harper: As I mentioned earlier, the proposed legislation the government will bring forward is obviously by necessity permissive in nature. It allows the government of the day not just to create elected senators, but to evaluate how that is affecting the system and what is happening; and it will occur over a period of time.

I can just say that my frank hope is that that process would force the provinces and others to, at some point in the future, seriously address other questions of Senate reform. There are questions such as the distribution of seats and the powers that we are all clear must be addressed through a general amending formula, constitutional amendment. I welcome the day when there is a public appetite for that discussion because I think the country needs it at some point.


Senator Chaput: Thank you, Mr. Prime Minister, for being here with us today. Personally, I have no problem with the fixed term. It has always been my philosophy. A longer term than eight years might be better but I have no difficulty with fixed terms. My concern relates rather to the next steps — Bill S-4 being only the first step of Senate reform — and to the election of senators. Today, in the Senate, we have aboriginal people, many women and representatives of official language minority communities. I myself am from Manitoba and I represent the French- speaking minority.

If I understood properly, you mentioned earlier the election process would be a national process. Can you guarantee that this process will permit to maintain in the Senate representatives of aboriginal people, women and members of official language minority communities? Would it be possible to address this concern?

Mr. Harper: This is a debate we will have during the next step. The government is going to introduce a bill and I presume there will be discussions on this point. I think there are ways to encourage the election of individuals who represent Canada's diversity. However, the nature of an election process is such that we cannot dictate voters' choice.

Senator Chaput: As you know, the majority takes care of itself but for minorities, it is much more difficult. This is my concern and I wanted to tell you about it.

Mr. Harper: I can say that the role of an efficient Senate is to represent the regional minorities of this country. It is possible to create a Senate which represents all the diversities.

Senator Chaput: If Bill S-4 is passed this Fall, do you intend to start immediately to appoint senators for eight years or will you wait for the other steps of the reform, among which that of election, to be passed?

Mr. Harper: The government prefers not to appoint senators unless it has the necessary reasons to do so. I mentioned one of these reasons in the case of senator Fortier. Frankly, we are concerned about the representation in the Senate and about the number and the age of our Senate caucus. It is necessary for the government, even in the present system, to have a certain number of senators to do the work of the government in the Senate. We have not reached a point where it is necessary to appoint certain senators to meet this objective. At this time, I prefer to have an election process where we can consult the population rather than to appoint senators traditionally.


Senator Hubley: Since July of 2004, my province of Prince Edward Island has had a Senate vacancy. My question is: Are you ignoring my province's constitutional right to representation within the Parliament of Canada by not filling that vacancy?

Mr. Harper: You are going to have to forgive me in observing that I have today been pushed on your side both to proceed more quickly with elections and also to now proceed more quickly with appointments. I think the reality of the situation today is there are a number of vacancies. They are certainly not exclusively in Prince Edward Island. There are nine vacancies across five or six different provinces.

The government does not feel any pressure from the population at large to fill the vacancies. I think it would become a bigger issue were the Senate viewed as the kind of effective body it could be. Once an electoral option was in place, I suspect the pressure to deal with any vacancy would become much greater.

Senator Hubley: Is it your intention, then, to initiate the process to choose an elected Senate on Prince Edward Island this fall?

Mr. Harper: It is our intention, on the assumption that we will make progress on Bill S-4, to proceed quickly to the next step, which would be to set up a process for electing senators or for consulting the population on Senate appointments. I would suggest to you that the tentative timing of that would be the next federal election campaign. It could be the next provincial election campaign.

If the government had in place at some point in time the capacity — we do not have a legislative capacity today to consult the population — I think we would want to do that in conjunction with some other democratic exercise. The costs of a stand alone process are quite high.

Senator Watt: Prime Minister, welcome. In your answer to Senator Chaput, I think I already have your response to the matter I was going to raise. It has more to do with the fact that the country is very diverse. I think we have a lot of catching up to do as a country to bring it to the level where everyone is properly represented and has a voice. It is very important to all of us within the country.

I would like to take this a step further and ask whether you are open to the idea of giving guaranteed seats in the Senate to a certain group — for example, the Inuit who live in the High Arctic, in the North. I am actually talking about three regions — Nunavut, Labrador and Nunavik. They all have something in common.

From time to time, as you can appreciate, Prime Minister, it has been difficult for us as parliamentarians to properly represent our people, especially at times when issues are wrapped around partisan matters.

If we are serious about reforming the Senate, I think it is timely to move in the direction of reforming the House of Commons at some point down the road. That is another issue. That is of concern to the Aboriginal people in this country, more importantly for the Inuit.

Our voice at times is heard; our voice at times is buried amongst a lot of other concerns because we are a minority people in this country.

If a process is established, would you be inclined in the future to discuss what the Senate and the House of Commons should become and the relationship between the two? Would you consider providing a space for the Aboriginal people within those two institutions?

Mr. Harper: My understanding of the Constitution today is that it would be next to impossible to do such a thing in either House without an amendment to the Constitution itself. This does not mean that when we are discussing a particular electoral system in the Senate that it may or may not be possible to devise systems that improve the possibility of certain kinds of representation.

I think I would leave it at that. To achieve what you are suggesting, I think, as a final outcome could not be done without a full-scale constitutional revision.

Senator Watts: Which I do realize. Thank you.

The Chairman: Prime Minister, thank you very much for this unique appearance. We hope it is not 139 years before another occasion like this occurs. In any event, we very much appreciate your help. As you know, the Senate prides itself in its work in committees and your presentation to us today will assist us greatly in our deliberations. Thank you.

I welcome the next panel of witnesses, Matthew King, Dan McDougall and David Anderson, from the Privy Council Office; and Warren J. Newman, from the Department of Justice.

Mr. King, please proceed with your introductory remarks and take senators through the bill.

Matthew King, Assistant Secretary to Cabinet, Legislation and House Planning, Privy Council Office: Honourable senators, given that the Prime Minister has just laid out in some detail the government's approach to Senate reform, we agree there is not much requirement for excessive comment on our part.

My colleagues and I are looking forward to providing as much detail and information as possible on Bill S-4, now before the Senate and the subject matter of which is being studied by this committee. I will take a few moments and review with the committee the key elements of Bill S-4, Senate tenure, after which we would be happy to take questions.

The government introduced Bill S-4 in the Senate on May 30, 2006. There was a question earlier, and the Prime Minister gave his reasons as to why the government chose to introduce this bill in the Senate. Bill S-4 proposes to amend section 29 of the Constitution Act, 1867, employing the procedures set out in section 44 of the Constitution Act, 1982. As we know, it is the government's position that subject to sections 41 and 42, section 44 gives to the Parliament of Canada the power to act to make laws amending the Constitution in relation to the executive government of Canada, the House of Commons or the Senate.


Under section 29, as it is now, a senator can hold his place until he attains the age of seventy-five, subject to sections 30 and 31, of course.

As the Prime Minister said and as indicated by other people who already appeared, I think, before this committee, section 29, combined with section 23, which requires that a senator must be of the full age of thirty years, means that, at the present time, the maximum tenure in the Senate is of 45 years.


Bill S-4 would amend the Constitution Act, 1867, by replacing the current section 29 with a new section 29 that would limit the tenure of senators to a period of eight years. In so doing, the bill effectively removes the requirement that senators must retire at 75 years of age. However, it does include a transitional provision that would allow existing senators to hold their appointments until the age of 75 years. Bill S-4 does not change the section 23 requirement that senators must be 30 years of age, nor does it change any other aspect of the qualifications of senators as listed in section 23, including the property qualifications.

The Prime Minister provided some detail on this earlier, but I will repeat that the government chose the eight-year term on the basis that it is long enough for senators to gain the experience necessary to effectively carry out their role in legislative review and policy investigations. The Prime Minister also noted earlier that the eight-year term is close to the recommendation of the 1984 joint House and Senate Molgat-Cosgrove report. The government shares the view set out in that report that introducing an eight-year or a nine-year term could be accomplished by Parliament using section 44 of the Constitution Act.

Mr. Chairman, these are the key elements of the bill. We are happy to take questions.

Senator Angus: I understand that all three of you are from the Parliamentary Reform Secretariat of the PCO; is that correct?.

Mr. King: My colleague, Warren Newman, is from the Department of Justice.

Senator Angus: My question stems from the current mandatory retirement age of 75. Am I correct in my understanding that should the bill pass as drafted, someone appointed to the Senate at age 74 could stay until the age of 82?

Mr. King: That is correct.

Senator Angus: That would be permitted under the proposed legislation.

Senator Angus: That is correct.

Senator Angus: My next concern flows somewhat from the Prime Minister's remarks today on an electoral process relating to senators. In regard to the bill that the Prime Minister said would be forthcoming in the future, I do not believe that he mentioned a date. Would this bill specifically involve the election of senators to the Senate or would it deal with a process to permit some senators who had gone through a kind of election to be available for appointment, as in the case of Senator Stanley Waters, for example?

Mr. King: I believe the Prime Minister indicated in response to a question that the proposed bill would likely include a type of popular public consultation process whereby Canadians would have the opportunity to express an opinion through a vote on a Senate vacancy.

Unfortunately, senator, that bill is still in development and before cabinet so I cannot say more in regard to the details than that. That is my recollection of the position taken by the Prime Minister today.

Senator Angus: I appreciate that. It seems that some members of the media were drawing conclusions, perhaps some senators also, from what the Prime Minister said about elections, and I did not get that. I think you have confirmed that I have the right impression. He is not saying there will be an election of senators like there is an election of members of Parliament, but there will be a consultation process that will make senators more accountable in the future, from which he could then appoint.

Mr. King: It is important to underline that it would be a consultation process that would leave unchanged the ability of the Prime Minister to recommend and the power of the Governor General to appoint senators. Anything further than that would require a more extensive amendment.

Senator Angus: Mr. Newman, you guys are always under the gun on legislation to sign off on whether legislation is intra or ultra vires before it is submitted in a cabinet document and eventually introduced in Parliament. As an adviser to the government on legal and constitutional matters, are you satisfied that Bill S-4, which provides for an eight-year renewable term — if indeed it is interpreted that the term is renewable — would be within the authority of Parliament? Would it be intra vires of Parliament?

Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice Canada: I will preface my remarks with the usual proviso that I will not reveal, because I am bound not to do so, any advice that the Department of Justice gave in the context of the development of this bill, but clearly the department was consulted closely on the development of the legislation. You heard the Prime Minister say today that the government is confident that the legislation is a constitutional measure. I would have no hesitation in saying that section 44 of the amending formula does provide for a procedure of legislative amendment of the Constitution and that this bill would fall squarely within the ambit of that constitutional amending procedure.

Senator Angus: The bill does not say that these eight-year terms are renewable, but the Leader of the Government in the Senate has indicated — you have heard, I am sure, what we have all been asking — that it does not say they are not renewable. Therefore, can we assume that the intention of this legislation is that they are renewable. Do you agree?

Mr. Newman: I agree that the bill does not say anything on its face about renewability. There is legislation that does talk about renewable terms, and we can discuss that in the context of the independence of this particular body if you want to do so at some point later in this discussion. The fact of the matter, as Mr. King has pointed out, is that the legal and constitutional power to summon senators to the Senate lies with the Governor General, and so nothing in this bill touches that power on its face in any way.

The Prime Minister indicated today that the government would be willing to entertain the possibility of amendments if that is the desire of the committee, and ultimately the Senate in this regard. Certainly there is nothing on the face of the bill that would, I think, trouble one from a constitutional perspective in terms of what it does not do to the appointment process and what it does do to section 29 as is it now stands in the Constitution Act, 1867.

Senator Angus: Were you suggesting, though, in the beginning of your answer, that there is another piece of legislation on the books that deals specifically with this renewability of appointments?

Mr. Newman: I am getting ahead of myself.

Senator Angus: I might have overlooked that statute.

Mr. Newman: I am following, as is everyone else who is interested in this issue, the debates both in the Senate at large and before this committee yesterday. One thing that struck me was the question as to whether the mere fact of renewability would diminish the independence of the Senate and its constitutional role in relation to the House of Commons.

I would advise, if I may be so bold, honourable senators, to reflect upon the role of the Senate as a political institution performing essentially legislative functions. The appropriate comparator is perhaps not judicial independence — where judges perform adjudicative functions in individual cases and not only doctrines of fairness but natural justice apply — but the political role that the Senate plays in terms of high politics and how that can best be accommodated in relation to its independence vis-à-vis the House of Commons and in relation to the executive.

I wish simply to point out that there are other high public officers of whom we expect a certain level of independence and autonomy. These functionaries are appointed for seven-year terms in most cases, with the possibility of renewal spelled out in the legislation, yet we do not expect that at five or six years they will start acting less independently in those positions.

I can mention, among others, the heads of administrative tribunals such as the Immigration and Refugee Board, the Canadian Human Rights Commission, or officers of Parliament such as the Privacy Commissioner or the Commissioner of Official Languages. They are all appointed to fixed terms of seven years and their terms are renewable based on the provisions of the legislation, yet we still expect a certain level of probity and independence on their part.

Senator Angus: My only query in that regard is then why have the drafters of the legislation not specified that the terms are renewable? Why leave it open to vagueness and trying to figure out what was intended? I am talking about longer down the road.

Mr. Newman: This is a constitutional amendment, and it is part of the spare drafting one sees in the context of the Constitution. It is not necessarily as detailed as some of the statutory provisions we would look at. In addition, the implication is that given the power of appointment, if it does not say that the term cannot be renewed, as is the case for the Auditor General — that is an exception to the other examples I was giving you — then, in principle, as the legislation is currently worded, nothing prevents the Governor General from proceeding to appoint for a further term.

Senator Austin: Mr. Chairman, I am very happy to have our witnesses here today. They are very senior and excellent public servants. Mr. Newman, I say that because I need to ask you a question to define your role here, particularly because of what you said in your opening remarks. Are you here as an advocate for the government, or are you here to advise us as equally and objectively as you would advise the government with respect to constitutional issues?

Mr. Newman: Your question is a good one. It is one I think any witness coming before a parliamentary committee must ask himself or herself beforehand. I have been involved in the development of the legislation from the perspective of a legal adviser. There are roles of providing legal advice in which I am bound by solicitor-client privilege and then there are other roles one can play as an advocate. I am attempting not to play an advocacy role in any way of a partisan nature because I am an official. I am not an elected or appointed politician. However, to the extent to which you ask me questions relating to the amending formula or how this bill fits within the current constitutional framework, I will try to give you the best objective view I can, bearing in mind that I cannot really reveal legal advice.

Senator Austin: I am looking for your best professional and objective view, not tainted by a political responsibility. Is that possible?

Mr. Newman: I am afraid you will just have to accept that I will give you the best answer I can in view of the position in which I find myself. You will have other witnesses who will be more independent from your perspective perhaps than I will be in terms of their position in relation to the legislation.

I am a government lawyer. You will have other constitutional experts to whom you can address questions as well.

Senator Austin: I appreciate your answer. I have long advocated in issues of constitutional matters that the Senate committee have its own independent advice, because I have been in government and I understand the role of an official from the Department of Justice Canada.

What I want to do — and this is preliminary to the questions and therefore the nature of your answers — is address the final recital in the preamble of Bill S-4 more or less that argues that the bill does not change the essential characteristics of the Senate. I have the bill here and I probably should go to it so that I can quote it exactly.

It says:

And whereas Parliament wishes to maintain the essential characteristics of the Senate within Canada's parliamentary democracy as a chamber of independent, sober second thought;

That is an aspiration and a political argument. It does not by itself conclude the issue; I think you would agree to that.

Mr. Newman: I would certainly agree that it is an aspiration. It is part of a preamble; and a preamble, of course, is one means of demonstrating legislative intent. Therefore, it would be part of the context in which the provisions would be interpreted, one would think.

Senator Austin: I am sure you are very familiar with the upper house reference, a 1980 Supreme Court advisory opinion. As you know, the government of Prime Minister Trudeau in 1978 asked the Supreme Court of Canada a series of questions that related to Bill C-60, one I was quite familiar with. Among the questions asked was whether the Parliament of Canada alone could change the tenure of members of the Senate.

At page 76 [1980] 1 SCR, 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 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.

So I really have three questions for you. First, the Act contemplated a Constitution similar in principle, and that principle is an appointed chamber of the House of Lords. How do you deal constitutionally with that issue — what is your constitutional argument?

Second, on the question of at some point a reduction in the term of office might impair the functioning of the Senate, how do you determine that eight years is constitutional? Would one year be constitutional? If it would not be, then why eight years? You know where that argument is going.

I will leave those two questions with you and I have one more.

Mr. Newman: Thank you for those interesting questions and clearly you have pinpointed the key passage in the Upper House Reference that relates to the question of tenure, which the court demurely declined to answer directly.

In relation to ``a Constitution similar in Principle to that of the United Kingdom,'' clearly that is a recital in the preamble of the Constitution Act, 1867, which carries great weight. To this day, it is cited in constitutional cases, including the Provincial Court Judges Reference and the New Brunswick Broadcasting case, the Secession Reference and so on.

It does carry weight and it is important. I would say that in the current context of our constitutional amending formula, it is quite clear on the face of section 42, read with section 44, that any change to the fundamental essential characteristics of the Senate — which I would submit are laid out in section 42, at least for the most part — would require a complex constitutional amendment; that is, an amendment involving the provincial legislative assemblies.

The Senate is in law, and at law, an appointed, not an elected body. Everyone would have to bear that in mind, including with whatever legislative measures the government brings forward. As a matter of constitutional law, as a matter of law, the Senate is an appointed body.

There will be a question as to, ``Yes, but are you speaking so much in terms of formalism rather than purposiveness and effectiveness, that you are saying we can transform the Senate effectively while leaving it, in terms of its shell, as being an appointed body?'' I would have to say again that our Constitution contains many formal aspects to which we adhere in law; and at the same time, in practice, through constitutional convention and otherwise, we exercise the legal powers in various ways to accommodate the changing values of the country.

I think that is a factor as well. In other words, it is perfectly consistent to say that the Senate is, as a matter of constitutional law, an appointed, not an elected body, and to say that there may be means down the road for informing the appointment process.

Let me get to your second question, if I may, the point that the Supreme Court had said that, and I take it almost as a spectrum, at some point a reduction would or could compromise the effectiveness of the Senate as a chamber of sober second thought in the legislative process. I will not stand on solicitor-client privilege. I believe I can say right now if any piece of legislation came forward and tried to reduce the tenure of senators to one year, it would not pass muster. That would obviously affect the nature of the Senate to that degree.

However, I would ask you, senator, if that is appropriate, through the chair, were the government to have come forward simply with the type of amendment that was proposed in 1972 by the Molgat-MacGuigan committee to reduce the age of retirement of senators to 70 years instead of 75 years, surely that would be permissible under section 44 of the amending formula. We would not go to the provinces to seek their formal concurrence through provincial legislative assemblies for that type of change.

It does become, to some extent, a matter of degree. It may sound as well, if I may invoke other metaphors, like the death of a thousand cuts, but at some point you come to the question as it where can Parliament legitimately act, including with the concurrence of the Senate.

Eight years is quite close to what has been recommended. It is a principled figure, derived I would think from looking at the recommendation of the Molgat-Cosgrove committee, looking at the terms of other upper houses and Senates, looking at what would be necessary for experience. I think that is where the eight years comes from, and it is a defendable period of time under section 44.

The Prime Minister said a term of maybe nine years would be appropriate, or six years, so it is not hard and fast. However, I think eight years is well within the range of what lawyers would consider reasonable.

The Chairman: In the interests of fairness, but benefiting from an exchange between witnesses and one of the senators, if Senator Austin is prepared to engage, that is fine. However, I would remind him and those who are before us as witnesses that his time is up, so if we could do it very briefly.

Senator Austin: The situation is, chair, that the answers have been fulsome and I appreciate them, but it would be unfair for me not to be able to pursue the lines at this point because this is where the answers were given. I want to say, I appreciate the answers and your attempt to make and justify the bill.

The question essentially is that the Constitution speaks with clarity and the Supreme Court has interpreted it. Now that we have a Supreme Court reference, could you tell us whether, in your opinion, this case stands as good law, having preceded the constitutional amendment? Are you prepared to make an argument that this is no longer good law because of the constitutional amendment?

Mr. Newman: I will hedge my response, senator, and be cautious. Since the reference, there has been an enactment of the amending formula, but it is still a very important reference point to the interpretation of how the amending formula works. No constitutional lawyer worth his or her salt would attempt to interpret sections 44 and 42 without having a look at what the Supreme Court said in the Upper House Reference. I think it is, by and large, good law. There are some slight adjustments to which we could allude in looking at the amending formula, but I think it is a very important precedent.

Senator Comeau: You referred to the number of years, whether seven, eight, nine years, as reasonable. I present another argument: The current average tenure of senators is 9.25 years. Eight years would be close to that average, but nine years would be closer.

Continuing with the constitutionality of the bill, I understand that section 42 would deal with powers, qualifications, residence and method of selection. However, I recall in the 1980s when a senator was appointed after a popular election. The Prime Minister chose to use it as a consultative election and recommended to the Governor General that the person who had been elected be appointed.

During the two-year Meech Lake negotiations, four senators were appointed under a method of selection that could have been considered unconstitutional but it was done. There were never any challenges to what would be, almost, a section 42 provision. I cannot see what the argument is now because such major provisions were accepted at the time. Some people are now saying that tenure is such a huge change. I am trying to wrap my mind around how people could accept selection but not accept tenure. I would like you to comment on that.


Mr. Newman: At the time of the Meech Lake Accord, it was anticipated to establish an appointment process taking more into account the provincial concerns in this regard. The were no challenges at that time, but I would still like to make a comment on this subject.

Not all constitutional amendments require a review by the courts. Since 1982, in spite of the failure of the Meech Lake Accord and of the Charlottetown agreement, the government passed about ten constitutional amendments. At least three amendments were about the process set out in section 44 and the others were bilateral amendments under section 43, in conjunction with one of the provinces.

I know that four of these amendments were challenged before the courts, having defended the validity of two of those amendments before Quebec and Newfoundland courts. And even there, there was no reference to the Supreme Court. The government was convinced that the constitutional amendments were valid. We thus defended them before the courts.

We hear that it would be chaos if ever this amendment to the Constitution were passed and afterwards made invalid. I would like to specify that if the legislation would have been without effect, nothing would have changed. At that time, a senator would have continued to sit and his term would have lasted until the age of seventy-five. His or her appointment wouldn't have been affected in any way from the point of view of its validity.

Nothing changes from this point of view as it is not a structural amendment to the Constitution which is proposed.

Senator Comeau: My last question concerns the renewal of the term and the argument that as the appointment date comes closer, senators lose their independence.


As we near the eighth year, senators will begin to suck up to the Prime Minister in order to be reappointed.


In my view, a senator who would do this would not have his term renewed. On the other hand, to avoid this, we could propose an amendment to the bill so as there is no renewal. This could be done in the case where the second step proposed by the Prime Minister, the elected Senate, would not occur within eight years. Would it be possible?

Mr. Newman: If I understood the extent of your words, either we amend the bill to prohibit a second appointment, or we leave the bill as it is in relation to this issue and there, if ever the second bill results in an act of Parliament and it is an appointment process, Parliament always has the option to amend again the Constitution because this is feasible under section 44, through the legislative amending process.

Senator Comeau: The elected Senate step would probably follow the reform step and it may be preferable not to limit the number of terms at this time in order to prepare the next steps.


The Chairman: Senator Tkachuk has a supplementary to one of Senator Comeau's questions.

Senator Tkachuk: My question follows along the discussion on the eight-year term of tenure. It is always interesting to discuss the relationship between the Canadian Senate and the British House of Lords. However, surely we would not propose legislation that would allow senators to leave their Senate seats to their children as they did in 19th century England. By title, you do not get to sit in the Senate.

The courts would be reasonable. We would be acting unconstitutionally if we did something to impair the functioning of the Senate. Surely no one can argue that an eight-year term would impair the functioning of the Senate. It would probably renew the Senate and might even make things better. I want you to comment on that.

Would there be a problem if the term was 15 or 20 years? It is simply a question of a number that is reasonable. Even the courts can be reasonable, I assume. I think an eight-year term would be considered reasonable and Bill S-4 would not be ruled unconstitutional.

Dan McDougall, Director of Operations, Legislation and House Planning, Privy Council Office: I think that is, essentially, the issue. Is it a reasonable term and does it provide a sufficient amount of time for senators to discharge the functions given to them by the Constitution?

With reference to the original question from Senator Austin, you referred to the preamble to the Constitution giving guidance as to how the Constitution itself is interpreted. It goes back as well to the preamble that you have here, which presumably, as Mr. Newman indicated, would give guidance to the intention of the government at the time as to what they intended by this measure. The intention, as was referenced when you quoted from the preamble, is to maintain those essential characteristics and to maintain the Senate as a chamber of independent sober second thought. The question then becomes, is that length of time sufficient to give effect to that intention? The policy of the government is that what we are proffering here is a length of time that will do that.

As has been mentioned, if you make a number of comparisons around the world, you will find that there are a number of different terms. There is quite a range of term limits associated with those upper houses. As the Prime Minister indicated earlier, I think you will find that few, if any, have a length of term we have here, which is potentially 45 years.

On the other hand, the lowest time limit I am aware of is six years. Australia, which has a legislative upper house similar in some ways to ours, has a six-year term. France has a nine-year term. Again, there is a range of terms with regard to upper houses within the global community. A term of eight years falls within that range.

I think that is probably reflected as well in previous studies that have been done on this subject and that had been mentioned previously when the Senate itself studied this area and made recommendations. They tend to coalesce around the same point.

Senator Hays: Supplementary questions in my experience as a chairman can be a slippery slope. Out of deference to Senator Austin, the dean of the Senate, I will extend a second supplementary.

Senator Austin: Practice them or do not practice them, but I will take this one.

The difference, Mr. McDougall, is that we have a recital that refers to a chamber that is for life, that being the House of Lords.

I understand your points. In the world of the ``ought,'' that might be a good argument. In the world of the ``is,'' we have a Constitution that is similar in characteristic to Westminster, and that is still an appointed chamber. The question of respecting the intent of the founders is one of those issues we have seen Mr. Newman argue away from.

Mr. Newman: I would add that the Supreme Court has told us we have a Constitution similar in principle to that of the United Kingdom but not identical. There is always going to be some play there.

I think we all agree that the Senate is an appointed body, and that is what we take from that recital in relation to the House of Lords. It is to be appointed rather than elected, but it is not an aristocratic upper body. It is an upper body modelled on the House of Lords but not identical to it.

Senator Murray: Your friend and former colleague Leslie Seidle was here yesterday and told us that the property qualification can be dropped by using section 44. Can I take it that is your view as well?

Mr. King: To be frank, I am not sure we concur with Mr. Seidle in his conclusion. I can say, however, it was not one of the things that came up in the context of putting Bill S-4 together.

Senator Murray: What about the age qualification?

Mr. Newman: Are you talking about the 30-year rule?

Senator Murray: Yes. Could Parliament acting under section 44 change the 30 years to 21 or 35?

Mr. Newman: Possibly.

Senator Murray: You are not sure about the property qualification?

Mr. King: Residency is a more difficult qualification.

Mr. Newman: The residence qualifications are clearly outlined in section 42.

The court indicated in the upper house reference that the property qualification was probably not as important today as it had been in 1867. There is an indication it might be able to be done by section 44. We have never had to have a considered view on it, and I could not reveal —

Senator Murray: Mr. Seidle was much more categorical than that.

Mr. Newman: He is no longer with us.

Senator Murray: He works for the Institute for Research on Public Policy now and is independent.

Bill S-4 provides for an eight-year term for senators who are appointed in the future. Could the government have made it retroactive and gotten rid of all of us who have served eight years or more, leaving only Senator Segal and Senator Dawson at this table? Could they have done that under section 44?

Mr. Newman: With respect, that is a hypothetical question. It is not what the government has put forward, nor was it what the government put forward in 1965 when the first amendment to Senate tenure was introduced. In other words, in both bills, the status quo was maintained for sitting senators.

I hesitate to venture into that sort of speculation because it is certainly not the intention of the government to have it that way.

Senator Murray: It is not the intention of the government, but if a reduction from retirement at age 75 to an eight- year term is within the power of Parliament acting under section 44, I do not know why making it retroactive would not also be possible. We will leave it at that if you do not want to answer it.

In the early 1960s, the precedent for what Mr. Pearson did later in the Senate was the Diefenbaker government's amendment to retire federally appointed judges at the age of 75. I should know the answer to this question, but I do not: Could Parliament acting alone make the retirement age 65, or could we decide to appoint judges for an eight- or ten-year term acting alone?

Mr. Newman: I hesitate to go down that road partly because it is speculation. I understand why you are raising the concern, and that is the analogy with the amendments in 1960 and 1965 both having ended up with a retirement age of 75 years.

I tried to make the point earlier that I think one would not want to press the analogy of judicial functions, vis-à-vis legislative and political functions, too far in terms of what level of independence may be required. It is not, from my perspective, inimical to the exercise of legislative power or political power of the type the Senate wields responsibly and has wielded to date to contemplate a term of six, eight, nine or 10 years, as opposed to determining where we are with judicial independence these days, because judicial independence and jurisprudence have developed strongly in terms of the separation of powers between the judicial, legislative and executive functions. Of course, the Senate, although independent from the House of Commons and the executive, is nonetheless part of the legislative function.

Senator Murray: I appreciate all that, Mr. Newman. I said I should know the answer to the question. The Supreme Court is mentioned in the Constitution; it is mentioned, I believe, in the amending formula.

Mr. Newman: Yes.

Senator Murray: However, the question is this: Looking at the 1982 amending formula, would Parliament have the power, acting unilaterally, acting alone, without going to 7 and 50 or unanimity or one of the other formulae, to change the tenure of federally appointed judges? Surely I can ask that question and you do know the answer.

Mr. Newman: I do know the answer to a degree. It is not an area in which I necessarily specialize. Other colleagues might ask themselves why I would venture to answer these questions, except out of politeness to your honourable self.

I would say that, yes, of course, there is a legislative power in relation to the courts and in relation to federal courts and federally appointed courts that resides with the Parliament of Canada, and that is through section 101 of the Constitution Act, 1867 in relation to federal courts. There are also powers that relate to federally appointed judges.

I do not want to speculate on what could or could not be done in relation to judges. First, I am not briefed to speak to that issue. Second, I have tried to indicate that I do not think, from my perspective, with all due respect, that it takes us very far in terms of where we go with the Senate. That is what we are dealing with here.

Senator Murray: I appreciate that.

Mr. Newman: There are other colleagues in our department, including in the judicial affairs area, who would be very pleased at some point to engage with you on what could be done in relation to judicial appointments and the tenure of the judiciary. I do not want to go too far in that area.

Senator Murray: It was pretty clear what the Prime Minister was talking about in terms of the future process for selecting senators. It is clear to me, Senator Angus, that he was talking about elections. He was talking about a process that might take place at the same time as provincial or federal elections. I do not think we are talking about some indirect process. The consultative process is election.

One cannot go very far with this. Are we talking about amendments to the present Canada Elections Act? Is that the universe you are in?

Mr. King: As I mentioned at the beginning, I am not in a position to get into any of the details on what may or may not be included in that bill. Hopefully, it will be introduced in the House soon.

It is the position of the government that this will be a popular consultation process. It will be structured in such a way so as not to fetter the ability of the Governor General to appoint senators. That is the position of the government at this point.

Senator Murray: Is that the extent of it?

Mr. King: Yes.

Senator Murray: Are you taking into account the unique situation of Quebec with the 24 senatorial districts?

Mr. King: Again, the bill is far from drafted. One thing for certain is that it will be a very complicated bill.

Senator Murray: The answer to my last question is one that I should know. It is fairly clear from what the Prime Minister had to say this afternoon how he sees this file evolving. ``Give me the eight-year term,'' he says, ``and it stands on its own even in an appointed Senate,'' although he was commendably flexible as to whether it will be renewable or not. ``Give me the eight-year term, then this fall we will bring in a bill for elections in the Senate.'' Then, in answer to Senator Segal, who raised questions about the relationship between this elected Senate and the elected House of Commons — in other words, the question of powers — the Prime Minister said, ``At that point we will have to sit down with the provinces.'' By way of editorial comment, that is leaving a lot of hostages to fortune. I do not think you can leave powers until the end, but you do not have to comment on that, unless you want to, of course.

The powers issue is a 7-50 issue, is it not?

Mr. King: Yes, it is. It is the same as the seat distribution. It would be a 7-50 issue now.

Senator Murray: Presumably, an elected Senate would not want to sit still for a suspensive veto in the amending process. An elected Senate would have the legitimacy to demand a full veto in the amending process.

The Chairman: On your last point, Senator Murray, I guess that would be up to the provinces.

Apropos Senator Murray's last point on amending the Constitution to change the mandate of sitting senators, that probably could be done under section 44. I took it that way. Of course, the Senate has an absolute veto on constitutional initiatives taken under section 44. Therefore, if the mandate of sitting senators were to be changed in any way, it would be with the agreement of a majority of senators.

My question is not that so much as it is this: The Prime Minister would have to have the House of Commons do it because it cannot be done by a minister. Would there be a way for a change to occur under section 38? In other words, you are convinced that it is section 44 and the Senate would have a veto, but if there was concern about the Senate vetoing such a bill, could it go under section 38, if the government felt strongly about it and wanted to pursue it as that kind of amendment, or is this not a cafeteria? Can you only go to one spot and not another?

Mr. Newman: That is a fascinating question, and not one on which I will expand, given the short period of time today.

There has been much written in the scholarly community about the extent to which the amending procedures are exclusive, because when you read section 44, it says ``subject to sections 41 and 42.'' It does not say ``subject to section 38.'' It reads that Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and the House of Commons.

The question that is begged is, can you go to what is called the general amending formula, although it has been used so seldom since 1982? Can you go to the next stage up and accomplish the same thing?

One answer would be that maybe you can because under section 38 you will still, with sweetness and light, get the Senate and the House of Commons and the provincial legislative assemblies. What if the Senate did not concur in the amendment under section 38, yet has an absolute veto under section 44? Would you be robbing the Senate of its role somehow or passing an amendment over its objection?

I am not prepared to give a categorical answer to that question, but there is something to be said for saying that sometimes various combinations of amending formulae may or may not work.

Senator Murray will well recall in the Meech Lake period that the package was complex enough; it was enough of a seamless web that both sections 41 and 38 seemed to be engaged, the worst of all worlds, where you had to achieve unanimity within three years, it would have appeared. At the tail end of that process, that question was about to be re- examined, but ultimately the fate of the proposal did not require it.

All that is to say that section 44 speaks on its face of being an exclusive procedure, but subject to sections 41 and 42. We know that what is in sections 41 and 42 cannot be done under section 44. We have not had to examine in detail whether what could be done under section 44 could also be done under section 38.

The Chairman: There seems to be doubt that you could take the alternative approach, as I read your comment.

Mr. Newman: I think one of the academics who might be appearing before you would have a more expansive reading of that.

The Chairman: Another matter I wish to raise is in terms of the meaning of independence and the way in which that is used in the opinion of the Supreme Court, and also in the minds of those who framed the initial institutional structures in 1867, and your analogy to appointees to administrative tribunals.

I think it is arguable that independence in an administrative tribunal is always subject to the appeals provisions of the legislation or, if necessary, extraordinary remedies that would be available. However, in the case of a senator and the word ``independence,'' there is no similar procedure to remedy a bad judgment on the part of a senator. That is not necessarily a good argument to use in terms of bringing into question whether or not someone who wished, either as a senator or as a chairman of an administrative board subject to appointment by the federal government, that it would not affect their independence or that we do not regard their independence as being compromised in any way. Arguably, it is not a good comparison because of the nature of the duty of a decider of questions of law that are allocated to that decider under the legislation creating the administrative tribunal and the nature of independent judgment exercised by a senator — or a member of the House of Commons, but a senator in our case — when deciding what to do with a particular piece of legislation.

Mr. Newman: You are absolutely right; none of these analogies are perfect. I was simply trying to give you, in an offhand way, some examples of senior officials who exercise public functions and are expected to exercise them in an independent manner, who are appointed to terms that are renewable. A seven-year term is not that far from an eight- year term and so on.

However, I agree that there is a process of appeal and correction ultimately, and rules of fairness and natural justice will also apply to the extent they exercise quasi-judicial functions.

The slightly better analogy might be to some of the ombudsmen, the Privacy Commissioner, the Commissioner of Official Languages and so on, who do not decide anything but actually exercise a specialized function to assist Parliament with investigations, recommendations and reporting. They can make reports to Parliament and Parliament can hear them in a special context and so on. That might be a better analogy.

At the end of the day, the Senate performs a political function. In my humble estimation, what senators must take from the Supreme Court judgment, but also come to their own reflection about, is what level of independence is to be expected of a senator. As someone mentioned earlier, there is a party affiliation. Although Senate committees are wonderful in this regard, one can never depend on fairness, for example. You cannot force a Senate or House of Commons committee to be fair in the sense of an administrative tribunal because it is a political process — and it should be. There are other bodies that perform judicial, quasi-judicial and executive functions.

All I am saying is that independence must be ensured, but it must be taken in its context, which is political and not judicial.

The Chairman: I appreciate your paper and I will look at it. However, what you said about the Supreme Court opinion expressed in its reference carrying weight I took comfort in, in that your interpretation of the effect of section 44, when read with the other sections, is not simply based on the black letter provisions of the Constitution. Rather, you do see the opinion of the court as expressed in the reference relevant to the decision-making process, if it came to that, that the court might revisit, if asked about this particular proposal. I am not suggesting anything by that other than that you see the terms of the reference as still being relevant.

Mr. Newman: Yes, the terms are still relevant. The court is not necessarily bound by its own decisions, but it overturns them only in exceptional cases. It is a relevant precedent and not everything in this world is contingent. It remains a relevant point of reference in relation to the amending formula.

One thing I would like to stress is that the amending formula does contain a fair amount of formalism. The amending procedures have to be made to work at certain times when the will is there to do so. I have expressed that before to the courts in relation to some of these constitutional amendments. It is not for the courts to go beyond saying have the procedures being complied with, in the case of a section 43 amendment, for example, the appropriate resolutions from the Senate and the House of Commons and the legislative assembly.

In some respects, formalism is important because our procedures are formal. You would not necessarily want to add on many additional unwritten requirements, but there is a role for interpretation and for purpose as well.

The Chairman: If I could have one last request for a comment. It has been touched on already, but I am not sure there is not more to say. Let me test that.

In terms of the next step that the government has under consideration and that the Prime Minister referred to, is there anything you can help us with in terms of timing?

In the absence of knowing what approach is to be taken, we are left with speculation on what it will be. In some people's minds at least, it is perhaps relevant to the question of terms. That question may ultimately come before us. If nothing more happens, is Bill S-4 great as it stands?

In any case, it will affect us — or it should. I may be wrong; we will see and decide as a committee, but it seems very relevant to me what that next step may be. It would be good if we could know a little bit about that, when it will come.

The other thing is would it be by ordinary legislation or by Order-in-Council? It is interesting to look at the provision of the Constitution that gives the Governor General the power to summon a senator. As best as I can tell, with the help of our clerk, the basis of the Prime Minister's prerogative is the 1935 Order-in-Council which says that it will be the Prime Minister's prerogative to put the name forward, and the convention has it that the Governor General accepts the Prime Minister's advice.

It might be done simply by Order-in-Council or by ordinary legislation, which I suspect is what you are in the process of doing. I would be interested in a comment on that, if you can give one.

This is relevant because if we are to have an elected Senate, even if it only binds a Prime Minister by virtue of legislation or an Order-in-Council, Canadians will see a very different decision-making dynamic with an elected Senate.

Mr. King: Mr. Chairman, in response I will revert to the comments made by the Prime Minister this afternoon. I believe that he said the government would like to introduce a bill in the House that would speak to the public or popular consultation process. I believe his exact words were ``hopefully this fall.'' That speaks to a certain sense of urgency.

Anecdotally, I would note that this commitment is featured quite prominently in the government's 2006 platform. My colleagues at PCO and I have been working quite hard on it for a long time. I would take the Prime Minister's word that ``hopefully this fall'' means in the near future.

Senator Fraser: If a one-year term would change the fundamental characteristic but, in your view, an eight-year term would not change it, where is the dividing line between not affecting the fundamental nature of the Senate and affecting the fundamental nature of the Senate?

Mr. Newman: Senator, having blithely mentioned the one-year figure, the point was that there comes a time when what is being done appears to be arbitrary, capricious or simply an attempt to undermine the formal appointment power: ``All right, we have to deal with the fact that senators are appointed, so we will ensure that they are appointed for an ineffective amount of time.'' In other words, it is a bad faith example that we are looking at and the one-year example is simply a proxy for that. Something longer than six years would seem to be lengthier than sitting in the House of Commons and, thus, more consonant with the mandates of other upper houses. Thus, we have the comparator as to what would be reasonable and effective, while always bearing in mind the role of sober second thought, independence and effectiveness of the Senate — all the reasons that we have an upper house.

The one-year example is not a mathematical cut-off but rather simply a proxy for saying the government cannot come forward with something that would undermine, in the eyes of all, including the courts, the effectiveness and independence of the Senate. If such a minimum were chosen, it would be problematic, but if it were kept within the range of what parliamentary committees in the fullness of their studies and deliberations have recommended in a non- partisan way as being an appropriate length of tenure, then it would be much more reasonable because it would be contextualized.

Senator Fraser: In other words, no answer. That is fine. It seems that a distinction should be drawn between tenure in elected chambers, where the popular mandate must be renewed, and tenure in those few appointed chambers that remain because of the different nature of the beast, which leads to my second question.

I understood the Prime Minister to say that he shares the view that he cannot go to a direct, explicit and open method of appointing senators without going to the general amending formula to achieve that. I understood him to propose, therefore, a consultative and permissive process, which is interesting. Clearly, the point of the consultation in such a case is to accept the results of that consultation, which is to say, move in all but narrow form to an elected Senate. I am not a lawyer, but I thought it was a basic principle of law that you cannot do indirectly what you were not allowed to do directly.

Mr. King: I believe that the Prime Minister said earlier that his preference would be to have a directly elected Senate at some time in the future. If you look again to the government's platform in its last election, it was pretty unambiguous language. The language was ``effective, independent and democratically elected body.'' Clearly, as we have established, that would trigger the general amending formula.

With respect to a popular consultation process, you could draw the conclusion that political forces would be such that a Prime Minister would feel obliged to appoint someone who came out at the head of that process. Again, senator, that would depend very much on how the process is structured and how it is featured in the bill. It is the position of the Government of Canada that, absent a formal amendment that would lead to a directly elected Senate, the key provision is to ensure that the power of the Governor General to appoint remains unfettered and that it can be done. How it will be done and what it will look like, I believe, will be spelled out in some detail in the proposed legislation to which the Prime Minister referred.

Senator Fraser: I am walking with my next and last question into areas where it would be hard for you to give detailed answers. However, you heard Senator Murray refer to the exchange with Dr. Leslie Seidle yesterday. I am a senator from Quebec so I am perhaps more interested than many Canadians in the matter of the Quebec divisions, which as they stand are widely disparate. One of my colleagues told me yesterday that to the best of his knowledge his division contains between 1 million and 2 million Canadians. I would be surprised if my division contains as many as 100,000 Canadians, although it might be slightly over that. Since we do not know the precise boundaries of the divisions, it is difficult to know for certain. In addition, as I understand, there are no divisions for the North because the North was not part of Quebec in 1867. How does one square popular consultations in Quebec with the constitutional requirement for divisional representation on the one hand and the Charter's equality rights on the other hand? I am beginning to have concerns about this.

Mr. King: Senator, you have set out the challenge very ably. It will be considered in the context of the proposed legislation that will ultimately be introduced in the House. Obviously, it will need to be done and positioned in a way that meets the existing constitutional requirements. I am not in a position to say too much now about how that positioning might take place.

Senator Fraser: In other words, watch this space. Can you tell me whether, at the current stage of reflection, you believe this particular circle can be squared or does something else have to be done, such as the abolition of the divisions?

Mr. King: It would be better for us, as officials, to not try to respond to that question now. A great deal of interesting work is underway but not enough of this has been put before ministers, and there are choices to be made. I do not think it would be fair for us to delve into anything that would cast a particular light on the potential choices, not only in this area but in many other areas as well.

Senator Fraser: I am sure. Thank you very much.

Senator Austin: On the last point, any change to the districts in Quebec sets up the whole question of a constitutional amendment required to deal with the elections process. That is not a change that I believe would be constitutional under section 44. That is my opinion. However, I leave that.

The issue I wanted to raise and ask for your guidance relates to the process of consultative referenda or consultative elections or whatever that bill that you are drafting might be described to be.

The Prime Minister has the prerogative of making his own terms of reference and deciding whom to recommend for elevation to the Senate. However, to use a parallel argument to that of Mr. Newman, a repetitive act now begins to suggest an attempt to make an end-run around the Constitution. There are Supreme Court and Privy Council decisions in regard to delegation of power that say that you cannot do with the Constitution indirectly that which you cannot do directly. The New Brunswick trucking case is sort of the arch case in the line of cases.

I am wondering about the constitutionality of a purely federal process which suggests a fundamental amendment to the selection process by a method that provides for choosing all the senators. Are we not really creating something we cannot do except by an amendment that requires the provinces to participate?

Mr. King: The answer to your question and what I should think would be a very lengthy and serious debate around that question, needs to take place when legislation is produced. I do not think the three of us are in a position today to go any further than we have.

Senator Austin: Mr. King, here is our conundrum: We have just a piece of the jigsaw puzzle in Bill S-4. When we ask the question, ``What happens next?'' the Prime Minister has indicated he has legislation under preparation. What it seems to suggest to us is that we need to see the whole picture of Senate reform before we conclude our dealings with Bill S-4 otherwise it is a leap of faith or a jump into the dark. We do not know what, fundamentally, is being suggested in terms of changing the nature of this institution. I am not asking you to answer the question, I just want to make you aware that in our debates as a committee your answers are leading us — and I do not think you could give other answers, quite frankly — to ask that question. The Prime Minister has said, ``This is a part of what I am going to do.'' The question is: Should we not, as a committee, see the proposed legislation to be introduced this fall? The Prime Minister referred in his text to this fall; there is no great hurry for this legislation. Should we see the whole of the scheme before we jump into this?

Mr. King: Senator, both of my colleagues want to make a brief comment in response, but before they do I would point out that the Prime Minister, I thought, was equally clear this afternoon in the merit of considering Bill S-4 as a stand-alone bill worthy of its own consideration. I thought that he made the case that, yes, there are clear linkages to the two issues, in an evolutionary way. When that evolution is set out clearly in the government's platform, it really is important to stress that in and of itself that it has merit.

Mr. McDougall: I was simply going to reinforce the same thing. The other element of this is the Prime Minister did indicate clearly that he would like this committee and the Senate to consider Bill S-4 on its own merits as well.

Supplementary to that, Bill S-4 works as a stand-alone bill with respect to the current appointments process as it could work, should the Senate approve a future elections type consultative type bill that would provide other guidance to the Prime Minister in that appointment process. It works within the existing scheme as it is within the Constitution now. It is just that you do not need necessarily to wait for anything else to happen in order to deal with the bill in and of itself.

Mr. Newman: My comment takes a step back, and it is in relation to what both senators said in terms of this principle of not being able to do indirectly what one cannot do directly. Our Constitution is rife with examples, and our jurisprudence as well, of that principle being honoured in the breach rather than the observance. The reason we can say we have a constitutional democracy is not because there is anything in the text that says that our monarch is anything other than an absolute one, but it is through convention, democratic principle and practices that we have tempered the exercise of legal and constitutional powers in a way that befits a modern democracy.

Even in the interdelegation cases it is true that the Supreme Court, for example, said that Parliament could not delegate to a provincial legislature or vice versa its powers. Within a year, however, the court turned around and said it was constitutional for Parliament to delegate to a provincial body, like the Lieutenant Governor-in-Council, regulatory powers.

There are examples that go both ways. What one concludes is: What is, in pith and substance, the legislation about? What is its effect? Is it an incidental effect and one that we can live with or one that is so fundamental that there is a real problem to it?

There is room for formalism, and formalism is important in the constitutional amending formula, and in the provisions of the Constitution, but there is also room for advancement through various legislative and other techniques, and principles of interpretation, without necessarily modifying or undermining the formal constitutional structure.

The Chairman: Mr. McDougall, Mr. Newman, Mr. King, we have benefited a great deal from your assistance this afternoon. On behalf of the committee and the Senate I wish to thank you very much for being with us. You have been available to us earlier for a briefing, and I know that if we have further questions we will be able to contact your offices and seek additional help.

The committee adjourned.

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