Proceedings of the Special Senate Committee on
Issue 3 - Evidence
OTTAWA, Tuesday September 19, 2006
The Special Senate Committee on Senate Reform met this day at 12:16 p.m. to
consider 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
representation in the Senate).
Senator Daniel Hays (Chairman) in the chair.
The Chairman: Honourable senators, I would like to call this meeting
to order. First of all, I want to welcome our guests and our television viewers
to this meeting of the Special Senate Committee on Senate Reform. For the
benefit of those tuning in, let me briefly explain the purpose of these
Last June, the Senate asked our special committee to examine Bill S-4, the
government's proposed legislation to limit Senate terms to eight years, and
Senator Lowell Murray's motion, seconded by Senator Jack Austin, calling for an
increase in western representation in the Senate.
To find out more about our work, we invite you to look at our website.
Today, we are pleased to have as our first witness Dr. Roger Gibbins,
President of the Canada West Foundation. He will be followed by Professor Gerald
Baier, from Yale University and then by Professor Philip Resnick, from the
University of British Columbia. Professor Resnick will make his representation
by video conference. He will be followed by Professor Andrew Heard, from Simon
As our final guest today, we will be privileged to hear from the Honourable
Gary Mar, Minister of International and Intergovernmental Affairs for the
Government of Alberta.
I now invite the deputy chair of the committee, Senator Angus, to say a few
words of welcome.
Senator Angus: I would begin by welcoming the witnesses to our
I would just like to say a few words in my capacity of Vice-Chairman.
In my respectful view, the Senate of Canada has served Canadians very well
since it was first established in 1867. Thousands of distinguished Canadians
have passed through the upper chamber and have rendered valuable service to
Canadians in a great variety of ways. As in most areas of our socio-economic
life, our institutions should, and in most cases do, evolve with the times. The
Senate is no exception. As Prime Minister Harper said when he appeared here on
September 7, Bill S-4 is but the first stage, in his view, of a long overdue
reform process that the present government has undertaken to implement.
These hearings are designed to afford Canadians a unique opportunity to hear
informed debate on the specific issues involved with Bill S-4, on the motion of
Senators Murray and Austin and on a wide range of other issues related to Senate
reform. Now is the time to bring the Senate into the 21st century so it can go
forward and carry out its role in our democratic system efficiently, effectively
and in a balanced way.
We sincerely hope that these proceedings represent only the first stage in a
process leading up to a reformed Senate capable of giving sober second thought
to legislation and of formulating excellent public policies for all Canadians,
regardless of the region, province or riding in which they live.
Roger Gibbins, President and CEO, Canada West Foundation, as an
individual: Thank you for this opportunity to appear before you. I will try
to be brief in my comments, only touching upon the written comments I have
provided, and then I would be happy to entertain any questions you might have.
By way of introduction, my academic career has been entangled with the issue
of Senate reform for more than 30 years and the organization I head today, and
have headed since 1998, has been a trailblazer with respect to Senate reform. I
should stress, however, that the views expressed today do not necessarily
reflect those of the board or staff of the Canada West Foundation.
I am not a constitutional lawyer. Indeed, I am not a lawyer of any kind. My
comments will be more political, in the positive sense of the word. I would also
like to point out that I am not a Senate scholar per se. My engagement with the
Senate has been through the route of regional representation within the national
Parliament. I have not looked at the Senate in the kind of detail that some of
your other witnesses have done.
This committee is considering two initiatives. I will restrict my comments
largely to Bill S-4 and will comment much more briefly on the amendment proposed
by Senators Murray and Austin.
In the paper that I have submitted, I outline the general case for Senate
reform, which will not be new to any of the people in this room. It begins with
the inadequate representation of regional points of view within the national
Government of Canada. I point out that federal systems universally have a
bicameral system of government, but in Canada this bicameral system has not been
very robust because of the way in which senators are appointed. The consequence
of this is that the constituent units of the federation tend to flow their
political voice through provincial governments and, in effect, we have
substituted intergovernmentalism for parliamentary democracy in Canada.
The argument about greater regional representation has been augmented in
recent years by a more explicitly democratic concern about the excessive
concentration of power that can occur in parliamentary democracies. Majority
governments at the present time face few effective constraints within the House
of Commons; therefore, Senate reform can be seen as a way of providing some
effective check on the government-of-the-day.
It is this democratic argument for Senate reform that makes me oppose the
abolition of the Senate because that simply makes a bad situation worse. In
other words, we do not do anything about the concentration of power in the
executive and in the House of Commons.
Where does this leave me with respect to Bill S-4? My first point is that
Bill S-4 shows incremental Senate reform is possible. I have been deeply
frustrated in recent years by the commonly made argument that, yes, Senate
reform is desirable but it must be comprehensive; because it must be
comprehensive it involves constitutional reform; and because constitutional
reform is impossible, any movement on Senate reform is impossible.
In short, the perfect has become the enemy of the good. We are told that any
incremental reform, even the smallest step, is to be shunned in case we are
pushed on to the slippery slope of constitutional reform.
Bill S-4 demonstrates that modest reforms are possible, that we can begin the
process without being terrified about what might await us further down the road.
In fact, I go further and argue that modest changes today make it more likely
that we will be able to generate the political will to confront more substantive
changes tomorrow. If we begin by chipping away, by destabilizing the status quo,
then we set in motion the political dynamics that will enable us to carry the
The special committee has asked whether the change to eight-year terms is
needed in order to ensure that the Senate evolves in accordance with modern
democratic principles and the expectations of Canadians. I would argue that
evolution is needed, that it needs to start somewhere and that Bill S-4 is an
appropriate, although modest, starting point.
The proposed eight-year term strikes me as appropriate, although I would not
want to die on the hill of an eight- year term; whether it is nine or 10 or
seven years seems to be largely inconsequential. However, I would point out that
the eight-year term is roughly congruent with the leadership cycle common to
corporate, non-profit and academic experience, and it is likely to be congruent
with the career paths of new Senate appointees. It provides time for coming up
to speed but no time for coasting.
I also suspect that this proposed reform does not require either provincial
consent or reference to the Supreme Court of Canada. I support Bill S-4 for
another reason and that is it buys us badly needed time.
This is a contentious argument to make, particularly in Alberta, where people
argue that all we have done is talk about Senate reform and that for too long we
have talked but refused to walk. They will say, let us get on with it; let us
strike while the iron is hot.
The problem, however, is that I feel we have not thought through some of the
basic design features of a reformed Senate. For example, and I touch upon this
in detail in my paper, I would argue that although an elected Senate is the
ultimate goal, we have not thought enough about how they should be elected. The
Canada West Foundation has been involved in the past with supporting a Triple-E
Senate, but I do not feel that we, nor have other people, given sufficient
thought to the mechanisms of election.
If we can get the design details right, we can create a Senate that will
serve Canadians well in the 21st century, that will produce a truly national
legislature reflecting not only regional diversity across the country, but also
diversity within provincial communities. However, if we get these details wrong,
we may end up with a Senate that further reinforces regional cleavages, making a
bad situation even worse.
Thus, while Bill S-4 shows that Senate reform is possible, we need to get it
right. I would argue that Prime Minister Harper is to be applauded for setting
the wheels of reform in motion but there is no need to step on the gas.
Before closing, let me briefly mention the amendment to the Constitution of
Canada concerning Western provincial representation, which proposes that
additional Senate seats be created for British Columbia, Alberta, Manitoba and
Saskatchewan. In my paper, I describe this amendment as a poisoned chalice for
Senate reform. I was perhaps too kind in my comment.
My concern with the amendment is twofold. First, it is premature to make ad
hoc adjustments to the representational base of the Senate. Second, the
amendment brands Senate reform as a Western Canadian initiative, while opening
up serious disagreement within the West about the differential weight given to
the four provinces.
In my view, Senate reform will proceed — indeed, Senate reform should proceed
— only if it is seen as beneficial for the country as a whole, as a way to
enrich democratic government and strengthen the national Parliament. Framing
Senate reform as a bid for greater Western Canadian representation will only
weaken the prospects for meaningful reform. Therefore, I cannot support the
In summary, I believe that the modest step forward proposed by Bill S-4 is
one that Canadians should take. As the old saying goes, the journey of 100 miles
begins with a single step. Let us take that first step and then think through
where we are going before breaking into a run.
Thank you for this opportunity. I would be happy to answer any questions you
Senator Austin: Dr. Gibbins, welcome to this committee. I want to
acknowledge that you have had a long history of looking at the Senate, looking
at constitutional institutions in this country. I first saw your work back in
the early 1980s on Western separatism when you prepared a paper for the Privy
Council Office, which I still have, I might add.
Obviously, you and I are in disagreement about the Western representation
issue, and I would like to question you a bit. I found it rather odd that, with
respect to Bill S-4, you are arguing for incrementalism — let us get something
moving, better than stasis — but when it comes to Western representation, you
are arguing the opposite. Perhaps you might see that contrast, or maybe you do
not, but I would appreciate your comments.
Senator Murray and I argued in the chamber that unless we could deal with the
high inequity of representation in the West — British Columbia and Alberta, but
also Saskatchewan and Manitoba — any chance for Senate reform would likely be
faced with substantial resistance.
You talked a bit about this resolution looking as if it is special to Western
Canada, but at the same time in Alberta, more than probably in any other part of
Western Canada, we have seen a couple of decades of demand for equity in terms
of the Senate. You are very familiar with Triple-E, I know — equality, equity
and effectiveness, the Brown- Byfield formula. I would ask you to begin with
your views of the validity of the Triple-E formula in the context of your
remarks. Then I would ask you to explain the poisoned chalice comment, given
that there has been a long-standing belief in Western Canada that while equality
may not be equity, at least a representation in the Senate that is closer in
line with the population of British Columbia and Alberta — that is, 12 and 10 in
the current ratios — is desirable, and it is desirable also to reinforce the
lower-population provinces of Manitoba and Saskatchewan with additional Senate
Mr. Gibbins: It is somewhat ironic, senator, that we come to different
conclusions even though we bring a common set of interests to the table.
Let me begin by referring to some of the earlier testimony when it was asked
whether Bill S-4 affects the fundamental nature of the Senate. I believe it does
not. However, the amendment that you propose goes to the very core of the
Senate, and that is who we should represent and what are the means of
My thinking on this has evolved somewhat over the 1980 presentation to which
you referred. I used to be a strong supporter of the Triple-E Senate. My own
thinking now is that the equal representation in the Triple-E model is something
that Western Canadians have to seriously consider. Not only is it probably not
in their own best interests, but it locks us into a narrowly defined view of
As this committee has heard, there are a number of possible forms of
representation that we should consider in looking forward. My concern is that
the Triple-E model looks back rather than forward, and we have to be more
creative in terms of the representational base of the Senate.
My second point is a more practical one. Western Canada represents at the
present time the core support for moving on Senate reform. The political
challenge then is not so much to elicit that support from Western Canadians but
to encourage other Canadians to join in this movement. That is why I am
concerned about an amendment that seems to frame the Senate reform issue as
something that will be beneficial to the West.
I do not think framing is necessary to bring Western Canadians on board, and
it is problematic for convincing the rest of Canadians that they themselves have
a stake in Senate reform. My concern is the premature nature of the amendment,
not a fundamental opposition to a greater voice for Western Canadians in the
national government. I want to think it through more carefully than I have had a
chance to do so.
Senator Austin: I am at the opposite end of the analysis. As I said, I
believe that dealing with Western representation opens the door to further
Senate reform, and that not dealing with it and making it clear that Parliament
is prepared to deal with it means a stasis on that issue. My own analysis and
the numbers I have seen indicate that, in a sense, the Triple-E argument has
been effective in creating a cause in Western Canada which, if not met in an
equitable, reasonable and pragmatic way, cannot be overcome.
It is a question of two different perspectives on the issue.
On the question of constitutionality, Senator Murray and I are proposing a
constitutional amendment. As you know, the Senate can initiate a constitutional
amendment and that is what we have done with respect to representation. It will
require seven provinces representing 50 per cent of the population for that
issue to be dealt with. Therefore, that is in the hands of the provinces, but
Bill S-4 is not, according to the representations of the government. While you
say you are not a constitutional lawyer, you have a view that Bill S-4 is
constitutional on its own. I will not argue that point with you.
The concern that you and others have expressed concerning this first step is
that it is not a valuable step without seeing both the bigger picture and what
the Prime Minister wants to do. As he told us, he will introduce a bill in the
fall that deals with a kind of election formula. We do not know what he will
To create an appointment process that may be unconstitutional would create a
mess, and to move ahead of seeing the Prime Minister's proposals for an elected
Senate would not carry the step of Senate reform towards elected, which you have
supported. There is nothing coming unless we know what the elected side is.
How would you reach your goal of an elected Senate through Bill S-4, given
the picture I have provided?
Mr. Gibbins: I agree that Bill S-4 is a modest step. My thinking comes
from two points of view. First, as I mentioned in my opening comments, I am
looking for some movement on the Senate reform front, and I have found it
frustrating that any movement over the past 25 years has been rejected because
of the fear of the steps that might follow. Personally, I find that difficult.
Second, what if Bill S-4 was not only the first step but the last step? Would
it leave the Senate worse off as a consequence? If everything else falls apart
and this is as far as we go, would we have made a mistake? My own thinking is
probably not. Bill S-4 is not a bad reform for the existing Senate. It does not
leave the Senate impaired if nothing else follows. That is why I feel it serves
as an appetizer. It begins to set the stage for a larger Senate debate without
bringing a high degree of risk to the existing Senate. If I thought that Bill
S-4 could leave the Senate damaged as a political institution, then I would not
support it. However, I do not see that as a likely outcome.
Senator Angus: To summarize your principal point as we understand it,
you have no problem with Bill S-4 as drafted. You would not have any objection
if it went to seven years or up to nine or 10 or even 11, but you feel eight is
good because it is sort of in sync with current practice in other institutions.
Mr. Gibbins: That is correct.
Senator Angus: You may have commented on the ability to be re-elected
or appointed through a second term — I guess the word is renewability. What is
your thought there?
Mr. Gibbins: I do not have a firm impression. However, if we think of
Bill S-4 as a transitional mechanism, then it seems the transitional nature of
the bill would argue against having those appointments renewable. Renewability
implies a degree of permanency, that we are looking ahead well beyond the
eight-year term, and, therefore, if Bill S-4 is seen as the opening step in a
larger process, it would be incongruous to have appointees under this bill open
My gut instinct is that renewal is not a positive option at this point.
Senator Angus: The bill has not had second reading but we are told, at
least so far, that the intention is that it would be renewable. The Prime
Minister has indicated some degree of flexibility and not only as to term.
In terms of your background and what you have just described as the evolution
of your thinking, how would you feel about an amendment to the bill as drafted
to make it 10 years expressly non-renewable? Would that improve it?
Mr. Gibbins: Having the length of term non-renewable, to my mind,
would strengthen the bill. The shift from eight to 10 years strikes me as an
unnecessary amendment, but not an amendment that I would strongly oppose. We are
looking at a fairly fine distinction.
In political life, and in most forms of life, only certain numbers are real.
Eight seems a lot shorter than 10 in the way we think about the world. When we
move into double digits, it begins to look more and more like the status quo,
whereas eight sends a different signal. However, we are talking about fine
distinctions at the margins, and the intent of Bill S-4 would not be seriously
damaged by either non-renewability or a shift from eight to 10 years.
Senator Angus: The other point, as I understood it originally in your
thinking, going back 30 years, you were for comprehensive renewal or reform or
nothing. You have now evolved to an incremental series of measures with the
ultimate goal of full scale reform.
You have probably read some of the hearings that we have had already. I do
not think it is a universal view. At least one senator has said it is
comprehensive or nothing in his view and that would be dangerous. Indeed, going
step by step is a dangerous way to get into the fray.
Could you comment on that?
Mr. Gibbins: There is no question in my mind that there are only a
limited number of steps we can take before encountering the need for more
comprehensive reform or the need for a constitutional amendment. There is no
question in my mind that we cannot go very far down the slippery slope before we
hit that need.
The question then is whether the threat of constitutional change is one that
should deter us from opening up the debate.
My own reading on this, which is partly informed by public opinion polling,
is that the fear we have of opening up the constitutional debate may be
experienced more sharply by the political leadership of the country, which has
borne more immediate scars from past constitutional issues, than by the Canadian
public. Speaking personally, and not as an academic analyst, given the choice of
resisting any reform for fear that it might embroil us in constitutional change,
or wading into the constitutional reform battle, I would pick wading into the
constitutional reform battle. I would like to see some movement on this file
before I am dead. I do not see the threat of constitutional reform as being a
necessary deterrent to Senate reform.
Senator Angus: I have one last question flowing from your opening. I
think your words were that there are only a limited number of measures open to
us without comprehensive constitutional amendment. Can you suggest one or two
others besides the one embraced in Bill S-4?
Mr. Gibbins: There has been discussion, certainly, about a possible
consultation mechanism that the federal government might employ other than
direct election. In my view, that moves us very close to the core nature of the
Senate and becomes close to constitutional reform by stealth, in a sense, and I
do not think it will avoid a larger constitutional debate.
When I referred to Bill S-4 as providing some space and time, what I really
hope is that the Senate hearings we are part of today will help encourage that
broader debate of what the path forward might be, because we cannot go much
further down that path before needing a clear sense of direction.
Senator Chaput: Good afternoon, Mr. Gibbins. I am always particularly
interested in reading Canada West Foundation publications. I am from Manitoba
and I am always curious to learn more about communities in Western Canada. I
hope that one day, you will publish an article on francophones living in this
part of the country because they are also part of the landscape in Western
I have two questions for you. The first concerns one of the comments you made
early on in your presentation. You stated that since 1990, the need for more
effective regional representation in Parliament is a subject that is had been
broached with greater frequency.
Could you define for me the expression ``more effective regional
representation''? In your opinion, what does the word ``effective'' mean in this
Mr. Gibbins: My concern about the nature of regional representation in
the national institution is twofold. First, the channels of regional
representation in the Canadian parliamentary system tend to be relatively
obscure or opaque to the general public. We often hear about how effective
cabinet ministers are in championing the needs or aspirations of their
provinces, but that takes place largely within the confines of cabinet. We
cannot see it happening. What we see from the outside is a parliamentary system
in which regional diversity tends to be suppressed in the interests of a larger
parliamentary discipline, party discipline. It is not that things do not happen;
it is that we do not see them as happening. As a consequence, provincial
governments have stepped into that representational void and premiers have
become our conduit for expressing our point of view to the national government.
To my mind, that weakens the nature of parliamentary democracy in Canada because
it takes regional representation out of Parliament where it belongs and into the
realm of intergovernmental relations, which is even more opaque in some respects
for average citizens. The publicly visible nature of regional representation is
Senator Chaput: You maintain that as a first step, Bill S-4 is a sound
piece of legislation and a modest reform initiative.
In your opinion, is it even possible to recommend changing Senate terms, for
example, limiting them to eight years, without first knowing what process the
Prime Minister would like to bring in to elect or appoint senators?
Can we discuss tenure before we even have some idea of what process is being
Mr. Gibbins: Yes, we can begin. I would make two points. First, I have
described it as a good starting point, although I am saying that it is a
starting point and any starting point to my mind is a good starting point.
Second, even if subsequent reforms collapse, even if they do not move us
forward, I do not believe that Bill S-4 leaves the Senate in a damaged state. If
the Senate were to recommend that reappointment be possible, then of course Bill
S-4 leaves us in a more status-quo situation because it allows longer terms and
looks more like the Senate we have today. So the low-risk option is to support
the eight-year term but make it renewable.
However, the non-renewable term is not a high-risk option for the Senate,
although I speak as an outsider to the body and may well be missing some
important nuances in that argument.
Senator Comeau: I would like to go to questions raised by your
presentation. My first question concerns your views versus those of the Canada
West Foundation, of which you are the president and CEO. You indicated that
these are your views rather than those of the foundation. Where are the
fundamental differences between your opinions and those of the Canada West
Mr. Gibbins: Yes, it is always difficult to separate the CEO from the
organization that he represents.
Senator Comeau: That is why I asked the question.
Mr. Gibbins: I realize that.
The Canada West Foundation has been active in the Senate reform field since
1981. To my knowledge, the foundation has never, as an organization, taken a
stance on Senate reform. There is no board resolution; there is nothing of that
sort. What the Canada West Foundation thinks about Senate reform is a reflection
of the president and CEO. That is why I point out that that thinking has
evolved. If I went back to my own board with what I am talking about today, I
think I could persuade them but many on that board might not see it as a
faithful reflection of their view on Senate reform.
Senator Comeau: You mentioned in your presentation that, as a further
consequence, the role of provincial premiers in national political life was
inflated as they were seen as the only effective conduit for regional interest
and aspirations into national affairs. What is wrong with that?
Mr. Gibbins: I have several concerns. I frame my concerns from my own
experience within the province of Alberta, which is not perhaps a typical point
of view on the world, although I think in this case Alberta exaggerates a more
general national trend.
I have spent 35 years in a provincial political environment in which the
dominant issues have been federal- provincial. I do not think that situation has
helped the quality of political life within the province. It has moved federal
issues back on to the provincial stage. Maybe I am a bit of a classicist on
this, but there is something appealing to me about provincial governments
handling provincial affairs and national governments handling national affairs.
We have muddied that water in a way that I think is unfortunate.
Senator Comeau: That leads me to my next question, which deals with
some comments you made.
Federal systems usually provide for some representation from constituent
communities, in our case the provinces. You argue that the bicameral system
should represent this constituency, the regions in our case.
Could you comment on those who make the suggestion that such a division may
not be the most appropriate way of trying to provide regional representation?
For example, there is a much closer constituency between the fisheries
communities of the West Coast and Vancouver Island and the fisheries communities
of the Atlantic coast as opposed to the West Coast and Vancouver Island to the
city of Vancouver.
A case could be made that provincial interests may not be the way to go.
Maybe it should be urban versus rural or other ways of looking at constituency
Mr. Gibbins: I believe that is a critically important question. My own
work on this issue during the last 15 years has taken me along the same
direction your thoughts are leading, which is that Canadians wear many hats in
their political life. One of those hats is a provincial identity, but we
organize our lives in many different ways.
My concern is that some of the existing models we have for Senate reform —
and I include the Triple-E model — are framed more by looking back than by
looking forward. I would hate to finally get through all the battles of
constitutional reform and end up with a Senate that was well-designed for the
last century but not for the next.
My concern is that the debate to this point has been shaped by a degree of
regional conflicts and provincial identities that may be eroding as our own
political system moves forward. Therefore, I would be very hesitant to endorse a
Senate reform that would reinforce the provincial identities we have and not
give full play to the other identities. That is why I am cautious about moving
Senator Comeau: I recently read in newspapers that Northern Ontario
was looking to Manitoba as being more closely akin to their problems, issues and
concerns as opposed to downtown Toronto. That is why I am asking these
In your presentation you ask a question regarding what role parties should
play in Senate elections. I was intrigued by that. Are you suggesting that
parties might not have a role in Senate elections?
Mr. Gibbins: I find it difficult to imagine that parties would not
intrude upon Senate elections. In fact, the use of the word ``intrude'' is more
negative than I mean.
However, there are ways of structuring elections for the Senate that might
minimize the role of parties and might allow other forms of political
organizations to come more to the fore.
I think if we are creative, we can have a Senate that is a more robust
representational body than we have at the present time. Along the way, we may be
able to moderate, in some way, the constraint of parties on the operations of
the Senate. Moderation is the only goal, not avoidance.
Senator Dawson: As the saying goes, a journey of a thousand miles
starts with one step.
The journey starts, but it would be beneficial if we at least knew where we
The problem of having a good departure is very interesting, and I think we
must launch this debate. It is important. Is it leading to Charlottetown or is
it leading to Meech Lake? It is leading to a Triple-E Senate, to elected
senators or to a Senate that has more power than the House of Commons because
they are elected and they represent the regions? I think we have to look at the
direction we want to go. The reality is, and I raised it a few weeks ago —
Mr. Gibbins, conceivably we could have a Senate in which there is no
opposition. That would be a first in Canadian history. We have always had a
Senate with an opposition to counterbalance senators appointed by the government
in power and the opposition. There has always been an opposition, whether for
regional, ethnic or political reasons. In theory, the current model has provided
an opportunity, to Mr. Trudeau, Mr. Mulroney and Mr. Chrétien alike, to come up
with a model that would do away with the opposition in the Senate.
The first step is an important one. I am delighted to see a constitutional
approach taken. Unlike some, I was a staunch supporter of Meech Lake. I was
somewhat less enthusiastic about the Charlottetown Agreement. However, it was,
in my view, a step in the right direction. I was among those who voted in favour
of the initial stage in the process, namely the patriation of the Constitution.
In my first political incarnation, the issue under debate was whether we
needed Westminster's permission to seek changes. Therefore, as I saw it, it was
an important step. However, we knew the direction in which we were headed.
Perhaps we did not reach our objective with the Meech and Charlottetown accords,
but at least we had an objective in our sights. All we know at this time is that
a term in the Senate would be limited to eight years. A senator may be able to
seek another mandate, but that is not a certainty. Perhaps a term of office
would be 10 years, but that is not a certainty either. We will find out in the
fall if senators will be elected to office. I agree with the first stage of the
Senate reform process.
The journey must start somewhere, but we should know where we are going. If
we are to take that first step, will it be in the form of a Triple-E Senate?
Will it be a Senate in which elected senators have more power than the House of
Commons and as a block could have one party structure that prevents the elected
House of Commons from doing what it wants to do? Will senators all be of the
same political affiliation, named by the Prime Minister of the day? I think
there is a lot of ``sagesse'' in the journey. It must begin, but we must
interrogate ourselves and be sure we know where we are headed.
My question is this: Should the check and balance of an assurance that we
will not have a Senate without opposition be contingent on renewal or
non-renewal? If you have 10- or 12-year terms, you minimize the chances of
having a totally controlled Senate by one political leader.
Mr. Gibbins: I was struck by the previous debate and the concern you
raised about a Senate that might be reflective only of a single party. To my
mind that is a very real issue. If that becomes a rationale for an extended
term, then that is something that should be seriously considered. You have
raised a very significant concern.
Your more general point is about the need to interrogate ourselves and
interrogate others about where we are going. I have no hesitation whatsoever in
saying that that is the broader debate we need for the Senate to push the Prime
Minister in terms of spelling out this longer vision of Senate reform, which is
an appropriate step for the Senate to take. The issue is whether that
uncertainty about the future is a sufficient concern to stop this initial step.
My view from reading the testimony to the Senate is that this first step has
in fact started the general interrogation that you are calling for, which I
think is really healthy. That is what we need within the country. Let us get
this going, but let us push as hard as possible for greater clarity on what that
sense of direction might be.
Senator Dawson: We already know that this autumn there potentially
could be the next step of an electoral process — a referendum or provincial
elections. In agreeing with you that we have to do these first steps, is the
relationship between naming senators and getting them elected too tightly knit
or too important to say, ``Let us deal with the duration of the mandate, eight
years or 12 years, and once we are decided, then determine whether senators will
be either appointed or elected''? Is it not easier to deal with both of those
issues at the same time?
Mr. Gibbins: I do not see them as being as tightly connected as you
suggest. I see the limited term issue as something that does in fact stand on
its own, although it has triggered this larger angst about the nature of the
Senate, and that is to be applauded.
If I were asked today to support a hypothetical piece of legislation about a
different kind of appointment process, I would be more hesitant to do so because
that does call into question the fundamental nature of the Senate and what kind
of institution, what kind of Parliament we want going forward in this century.
Again, I keep coming back to the same point. I do not see this as a starting
point that is damaging to the Senate if that is as far as we go. The steps that
are being suggested or talked about hypothetically concerning a different format
of appointment are much more serious in my mind and call into question the more
immediate need for a full discussion about where those next steps will take us.
Senator Dawson: Can you comment on the danger of not having an
Mr. Gibbins: That is a legitimate concern to raise. I would have to
pay closer attention to the math to see if in fact that concern will abate if we
have a 10-year or 12-year term. My suspicion is that the problem we have, no
matter how we do this, is a Senate that is either badly out of line in a
partisan way with the House of Commons, or a Senate that is so effectively in
line with the government of the day that it fails to serve as an independent
point of view. In its deliberations, it would be foolish for the Senate to
ignore those risks. In my view, they are fundamental.
Senator Tkachuk: Stan Waters was an elected senator. Were any
questions raised about his legitimacy because he was appointed as a senator
elected in Alberta?
Mr. Gibbins: There were no questions about his legitimacy. Serious
questions have been raised about the nature of the Senate selection processes we
have held within Alberta because they have not involved a full range of parties
and a full range of political participation. Part of the problem is that they
were elections or selections held for openings that did not exist, and then the
prime ministers of the day made it quite clear that they would not follow
through after Senator Waters. They were funny exercises. They were not entirely
hypothetical, but they were not entirely real. To my mind, they did not work
very well as democratic initiatives. They did not engage the public in the way
that they should have. It was a start, but I do not think it has taken us very
Senator Tkachuk: They were not unconstitutional, were they?
Mr. Gibbins: They were not unconstitutional, no.
Senator Tkachuk: After Meech Lake, there was also the case of four
senators being appointed by Prime Minister Mulroney on the recommendation of the
Province of Quebec. There was certainly no question of their legitimacy and no
question that the process was unconstitutional.
Mr. Gibbins: No.
Senator Tkachuk: Getting back to the Senate itself, there seems to be
a lot of concern about making sure we have an effective Senate and that we
cannot take the step of establishing an eight-year term because we may be
tampering with something that works so well. Can you give me instances since
1867, in the last 139 years, where the Senate, outside of it being like a
permanent royal commission investigating this and that, has done a credible job
of regional representation?
Mr. Gibbins: I do not have a list in my pocket of accomplishments of
the Senate in this respect, so I will back into an answer.
The issue of Senate reform is not how well the Senate has performed its
duties as it has defined them, but the extent to which the Senate has failed to
provide other forms of representation. I will give you one quick example.
It is frequently pointed out in Canada that we have never had a provincial
premier, with one small exception, who has become Prime Minister of Canada. You
will ask why that is the case. There may be many reasons, but when you look to
the United States, most of the recent presidents have come from state
governments. They are people who know the operations of state politics. They
have been there. They know that side of the federal system. The states become,
in a very real way, a training ground for national politicians who then come to
the Senate or directly to the presidency. There exists an institution in the
United States that has encouraged the migration of political talent upwards from
the states into the national government.
In Canada we do not have that migration. Therefore, we have federal and
provincial governments pitted against one another by the career choices the
elected politicians make. I do not think that is functional in the long term.
Therefore it is an example, and only an example, of how a different kind of
Senate may have spin-off benefits that would strengthen the Canadian federation
and the national government.
Senator Hubley: Thank you for your presentation. I am going to come
back to the eight-year term, as it has been suggested, and certainly in the bill
itself it suggests the eight-year term. We have asked for some reasoning behind
the eight-year term, and I think you have equated that to the corporate world
and academic experiences.
There is more to think of when we are suggesting an eight-year term. I am not
sure if we can equate it to a business profession or a profession where one has
gone to university and are trained in such. Coming into the Senate is a
different experience. When you agreed with the eight-year term as being
appropriate, were there other reasons you thought this eight-year term would be
workable for the Senate?
Mr. Gibbins: My concern is that if the term is markedly longer than
eight years, then Bill S-4 will not be seen as a reform movement or movement at
all. Therefore, to exaggerate it, if Bill S-4 was amended to a 20-year term,
most Canadians, I am sure, would say that is the status quo; that is not a
change. That is pretty close to 75 years, or to a life sentence. If the term is
not seen by the public as departing significantly from the status quo, then it
will be seen as a meaningless initiative by the Prime Minister, and that is why
we run up against those limitations.
As some of the previous testimony has pointed out, the term of senators is
usually in the area of 11 years, so eight years is not differing dramatically
from that. My own political instincts tell me that a term that moves into double
digits would appear to the Canadian public as a meaningless, cosmetic change
that may excite anger rather than support.
Senator Hubley: The difficulty that leaves us with is that we perhaps
have the most intimate knowledge of how the Senate actually works, the time it
takes to accomplish certain goals within the Senate. I would not like to think
of this as an exercise to satisfy just a political objective. It is more
important if we, on this committee, feel that we accept the eight-year term, yet
have reservations as to how that is actually going to affect the Senate, then I
think we have to say that by going to a term that does not allow the Senate to
do its work, we are somehow changing the nature of the Senate dramatically. That
is what we are faced with.
It is not just saying that eight years sounds pretty good, let us do that
because then we can put Bill S-4 forward. I think there is a danger in doing
that. We would not be doing our job or being honest with Canadian people if we
allowed that to happen. I do not know if you have a comment on that. It was an
impression I had as I listened to the presentation: Because the Canadian people
will think that eight years is good, then we should go ahead with that. There is
more to the issue than just satisfying a term that perhaps we do not all agree
Mr. Gibbins: In many ways I am sympathetic to the argument you make. I
do not want, in any way, to appear to be disrespectful to the Senate. I would
say that an argument that eight years does not provide senators with enough
opportunity to make a difference would be greeted with disbelief by the Canadian
public. It will be a very tough argument to make, partly because of the
experience a lot of people have with shorter terms in their own lives. It would
be a very difficult hill for the Senate to die on, in this sense. The public is
not there and convincing the public at this point, I would suggest with all
humility, would be a tough sell.
Senator Fraser: My eyebrows shot way up, Dr. Gibbins, when I saw you
comparing an eight-year term with academic experience, and then I looked again
and you were comparing it with the leadership cycle in academic experience. For
all I know you may be right, maybe university principals do serve an average of
eight years. Senator Tardif would know this better than I.
However, there is view among many senators that if we are going to draw those
comparisons, a better parallel — far from exact, but a closer parallel — would
lie between senators and university professors who, as you know, have tenure for
Senator Tkachuk: You are speaking for yourself, I hope.
Senator Fraser: Let me repeat that I have always been in favour of
term limits. I am not suggesting tenure for life, or age 105 or whatever we live
to these days.
Nonetheless, that view of what senators do and are supposed to do within the
institution falls more along the lines of the famous line from Sir John A.
Macdonald about being a chamber of sober second thought, a chamber of careful,
impartial — most of the time — revision, whatever the term.
If we go to a system with the election of senators, what will be the effect
on that dynamic, in your view? How will that function of what the Senate does be
Mr. Gibbins: You have rolled together a couple of threads, and I will
To go back quickly to the eight-year term, I may be drawing from my own
personal experience. I was a department head for nine years; I thought it was a
year too long. I have now been President of the Canada West Foundation for eight
years and I am beginning to wonder about institutional renewal within the
foundation. There is something about the energy people bring to positions of
leadership and their ability to sustain that, and their propensity to burn out
Senator Fraser: We are not leaders.
Mr. Gibbins: That is your characterization, senator, not mine
If we move to an elected format, it is hard to say, it depends a lot on the
method we use to choose senators. To draw from the American experience, the
American Senate does not suffer from rapid turnover. The American Senate
suffers, I would argue, from somewhat the reverse. With no mandatory retirement
age, there have been senators who have been, let us say, advanced in their age
and in their grasp of the political world. Elections do not ensure rapid
turnover and they do not ensure that there will be new people with new thoughts,
but at least they open up that possibility.
Senator Fraser: The American experience takes us only so far down the
road in terms of trying to predict what happens with an elected chamber. Their
legislative process is so different from ours that it is barely comparable. I am
trying to understand what people, who have spent a long time thinking about an
elected Senate, would think the effect of electing the Senate would be on its
function as a chamber of sober second thought.
Mr. Gibbins: I do not claim to speak with great authority on this
issue. In my view, the quality of that sober second thought comes from the
talent of people who are recruited to the Senate more than it comes from the
careful nurturing of that talent over an extended period of time. I do not
believe that the sober second thought capacity of the Senate necessarily hinges
on the longevity of Senate tenure. Rather, it comes from the quality of people
we attract. We have been well served by this in the past and my view is that an
elected format will do nothing but improve the quality of people who are brought
Senator Watt: I will go back to the point of regional representation.
Senators come from a variety of regions and bring with them many different
perspectives. I try my best to represent the Inuit of the North. They used to be
called ``Eskimos.'' The people I refer to are in four regions. I mentioned three
regions when I was talking to Prime Minister Harper last week, but there are
four regions when you include the people of the Western Arctic.
In your paper, Mr. Gibbins, you do not point out any improvements or lack of
improvements in regional representation in the North, especially in the Arctic.
Those four regions normally have common interests and concerns and, basically,
the people of those regions speak the same language. As parliamentarians,
senators have tried their best over the years to represent their interests but,
at times, our voices are not heard. How do you envision people living in the
high North getting their points of interest and concerns across to Canadians?
Currently, the only instrument for that purpose is the few northerners who have
been appointed to the Senate to represent those regions. We have a role to play
and we do our best to represent the interests of the high North. At times
Parliament passes bills that are one- law-fits-all but they do not all work to
the advantage of northerners. In fact, some have driven us backwards
economically. We have to get the message to all Canadians, the general public
and parliamentarians that this is not the way to deal with people who are trying
to make ends meet. What might be good for one might not necessarily be good for
How do you envision increasing the representation of the Inuit in the high
North who have, at times, different concerns, such as climate change? We have
been trying to be heard by Canadians and, at times, we do not get our message
across as much as we would like to. Could you comment?
Mr. Gibbins: I will make a couple of points. First, there is no
question in my mind that the House of Commons does not provide a very suitable
vehicle of representation for the North. In fact, if the House of Commons moves
toward more emphatic representation by population, that voice might be
Second, the Senate is the traditional way of representing territorial
communities, which we should be able to do. I mentioned my fear earlier that we
will design the Senate by looking back rather than ahead. Allow me to make the
point in the following way — the Triple-E notion of equal provincial
representation ignores the possibility of the territorial governments becoming
provinces. Triple-E does not look like a smart idea when you bring into play the
three northern territories. This is why I argue that we have to look forward in
our efforts to design a Senate rather than look to the past for easy solutions,
which I think Triple-E was doing. We have to determine whether there are groups
in Canada that lack alternative means of political representation, where they
are and whether the Senate can provide a useful role in providing that
representation. I think it can do so. The exact mechanisms by which we do that
are not clear but the Senate is the body for this. To some degree we have done
that and we can do it more and better in the future. Our thoughts are aligned on
Senator Harb: Thank you for your presentation, Dr. Gibbins.
I am intrigued by your comment that being elected improves the quality of
people in the institution. I would like your comments on the Canadian justice
system, including the appointment of judges to age 75. One would argue that we
have one of the finest justice systems in the world.
As well, at one time the Canada West Foundation proposed the single
transferable vote system. I would like your comments on that and whether you
still support that notion.
Mr. Gibbins: This meeting is an unfortunate forum in which to make the
argument that elections would improve the quality of individuals. I am not a
supporter of elected judges and I like the current system.
When I referred to better quality people being brought into the Senate, I had
a specific point of reference: encouraging the upward flow of political talent
from local and provincial governments, which we do not have in the Canadian
political system. That was my reference in respect of improving the quality. It
is not a reference to personality but rather to that particular experience,
which is an important lubricant in the Canadian federal system.
In terms of the balloting mechanism that might be used, a Senate comprised
only of Conservatives elected from Alberta or Liberals elected from Toronto
would damage the Canadian political system. We cannot replicate the electoral
system that we have in the House of Commons because it would replicate those
regional distortions, which would be a tragic step for Canadians to take.
Therefore, we have to look at a better way of elections within the Senate.
That takes careful thought and that is why we have been looking — in not as much
detail as we should be looking — at different kinds of ballot mechanisms. If we
simply replicate the electoral status quo, we will damage the country. I do not
want that to happen.
Senator Austin: What information can you bring us with respect to the
position of the Government of Alberta regarding Bill S-4? Do you have any
background on their thinking?
Mr. Gibbins: No, I do not. You will be meeting this afternoon, I
gather, with Minister Mar. I am not aware of any pronouncements by the
Government of Alberta on this issue. I should also point out more generally that
we are in a happy zone, if you want, in Alberta right now in terms of the Senate
reform debate. In the short term, the election of a different government to the
House of Commons has quelled a lot of the regional discontent one would find in
Alberta. At this point the issue is not bubbling, which may be why the
Government of Alberta has not pronounced on it, nor, as far as I can tell, have
the leadership contenders for the provincial Progressive Conservative Party. I
am not sure about that, but it is not a big issue in terms of the leadership
debate within the province.
Senator Austin: I have not seen any debate whatever on Senate reform
in the Progressive Conservative leadership contest in Alberta, which indicates
to me that the whole question of Senate reform coming out of Alberta is passé
for the time being. Alberta's economic strength, its representation in the
federal Parliament and its feeling of inequity with respect to its impact at the
national level seem to have dissipated for the time being. I appreciate your
answer very much.
Mr. Gibbins: I agree completely. I am not sure the idea is passé, but
it is in abeyance right now. It is not driving opinion or discussion. When I go
to my neighbourhood pub at night, we are not sitting around talking about the
merits of the Triple-E Senate because things are going well. That is why I would
argue that we have a need to exploit this opportunity that is being created for
a more thoughtful and a more creative debate on Senate reform because right now
the political environment, at least in my province, is much more pliable and
open to that debate than it has been over the past while.
Senator Austin: That is a very good platform for Minister Mar's
appearance later today.
I want to conclude by saying that I appreciate, as I am sure my colleagues
do, your evidence this afternoon. Prime Minister Harper told us that this fall
he would bring in legislation outlining the nature of his proposed electoral
process. My colleague Senator Dawson asked you if we should not wait to see much
more of the picture if it is this fall. I did not hear you comment directly on
that question. Would it not be prudent for this committee to wait and see what
Prime Minister Harper really has in mind with respect to the electoral process?
Then we can decide on the term and other issues should we wish to do so.
Mr. Gibbins: I can understand the argument for waiting. My own sense,
however, is that there is an opportunity to begin to enrich that larger debate.
For the Senate to appear to be positioning itself as dragging its heels or
opposing modest reform, does not set the right tone for that larger debate.
On the question of eight years or nine years or 10 years, I would also argue
that there may be better or worse choices, but the risk to the Senate and to the
country is very small. When we get into an electoral format for the Senate, the
risks escalate dramatically, and I hope then that the Senate gives this issue
the full intensity of its thought and debate.
The Chairman: Thank you, Dr. Gibbins. On behalf of the committee, and
generally on behalf of the Senate of Canada, we appreciate very much the time
that you have taken to prepare your presentation and in particular the time that
you have taken to be with us this afternoon and to deal with our questions. Your
advice is highly valued.
Senators, our next witnesses are Professor Gerald Baier from Yale University,
Professor Philip Resnick from the University of British Columbia and Professor
Andrew Heard from Simon Fraser University. Professor Resnick is with us by video
conference, and I will ask him to give his presentation first.
Mr. Philip Resnick, Professor of Political Sciences, University of British
Columbia, as an individual: Honourable senators, thank you for allowing me
to make my presentation by video conference.
For survivors of the constitutional battles of the late 1980s and early
1990s, like myself, there is something perilous about opening up the
constitutional dossier once again. True, the Canadian Senate, a body with little
legitimacy as an authentic voice for the regions, is something of a
laughingstock when we compare it to upper houses in federal systems such as
Australia, Germany or the United States. Incidentally, I heartily disagree with
Professor Ned Franks, who praised the current unreformed Senate to the skies in
his testimony before this committee.
However, any significant changes to the Senate — for example, making it an
elected rather than an appointed body or, alternatively, turning it into a
German-style house of the provinces — would involve wholesale debate about the
functions of an upper house and the division of powers between it and the House
of Commons. This is a sure recipe for unleashing some the same constitutional
bickering Canadians experienced 15 years ago, and it made the Constitution
something of a third rail in Canadian politics.
Are the senators who have introduced the current proposals wise to open up
the subject once again? They are proceeding in a piecemeal fashion this time
around, proposing a fixed term of eight years for senators and enhanced
provincial representation for Western Canada in the existing Senate. This is not
the Triple-E Senate — elected, effective and equal — we heard so much about in
the early 1990s and that helped propel the Reform Party into the powerful voice
of Western alienation that it was to briefly become.
However, Bill S-4 is not without its problems. The idea of fixed terms is not
a bad one in itself and seemingly even more pertinent to a body that is
appointed rather than elected in character. Who, after all, believes in
permanent tenure in our day and age, other than university professors? There
would seem to be every reason to limit the tenure of newly appointed senators to
no more than eight years in toto, ensuring a more frequent renewal of the
upper house and the possibility of giving it a more broadly representative
There is, however, one important caveat. Because Senate appointments
currently fall within the purview of the Prime Minister of the day, any Prime
Minister with a majority government lasting two terms or more would be able to
ensure that the Senate was made up of wall-to-wall Liberals or Conservatives of
his own appointment by the time he left office. In other words, the chief vice
currently associated with having an appointed Senate would be reinforced by the
measure that is being proposed.
One way around this would be to ensure that the Prime Minister, in making
future appointments to the upper house, would be acting on advice. Advice could
come from members of a body such as the Order of Canada, from the provincial
premiers and legislatures, or from a wide range of interest groups with national
profile. However, how exactly might this more open process of Senate appointment
be engineered, and how could one be sure that at the end of the day the partisan
character so characteristic of senatorial appointments would not win out? In
short, without a more thoroughgoing reform of the Senate, for example, in the
direction of making it an elected rather than an appointed body, I am not
convinced that term limitations would represent an improvement.
The Prime Minister, in his appearance before your committee and in other
public pronouncements, has made it clear that he does want to see elected rather
than appointed senators. However, this would entail a major constitutional
change, invoking section 42 of the Constitution Act, 1982, and would inevitably
raise the question of the relative powers of an elected Senate vis-à-vis the
elected House of Commons, a significant departure from the type of arrangement
we have known in Canada until now. Is the country ready for such a debate at
this point in time, any more than it is ready for a debate on another hoary
chestnut of Canadian constitutional practice, namely, the role of the Governor
General and of the monarchy more generally?
I am more supportive of the amendment of the Constitution regarding Western
provincial representation that Senators Murray and Austin are proposing. It may
help that I live in British Columbia and have in the past made the argument for
seeing B.C. as a distinct region of Canada, but more is involved than some kind
of regional loyalty on my part. I was never persuaded by the advocates of a
Triple-E Senate that absolute equality in Senate representation, say between
Prince Edward Island and Ontario, was the right way to proceed. Instead, I find
the formula that is used in representation in the Bundesrat, the German upper
house, with the larger Länder having five members, the middle- sized Länder four
and the smallest Länder three, eminently sensible.
In the Canadian case, we should also be thinking of a more standard
population formula for representation in the Senate. The largest provinces, for
example, with a population exceeding 6 million, should have a full complement of
24 senators; middle-sized provinces, with a population between 2 million and 6
million, should have a complement of 12; and, smaller provinces with a
population of less than 2 million, should have a complement of six. P.E.I.,
because of its miniscule population, should have its quota reduced to something
Such a change would entail invoking section 41(b) of the Constitution
Act, 1982, requiring the assent of provinces such as Nova Scotia and New
Brunswick to a reduction in senatorial representation from 10 to six, and of
P.E.I. for a reduction of its quota to three — not a very plausible scenario.
Therefore, the makeshift proposal contained in the proposed amendment on
provincial representation is all that can be hoped for at this moment, a
less-than-perfect proposal, albeit a step in the right direction where
representation in the Senate for the Western provinces is concerned. Even this
proposed amendment would require the approval of seven of the 10 provinces
pursuant to section 42(c) of the Constitution Act, 1982.
The fact remains that B.C. and Alberta, with their burgeoning populations and
red hot provincial economies, are grossly under-represented in the Senate, whose
regional composition dates back to the railway era. Despite the current Prime
Minister coming from Alberta, it is the exception rather than the rule to have a
Prime Minister from Western Canada. Nor does the West always pull its weight in
federal cabinets or national debates. Although Western alienation has gone into
remission for the moment — much like Quebec separatism, which is its kissing
cousin — there is little likelihood that it is about to disappear, no more so
than is the Quebec sovereignty movement.
One relatively low-cost way of undercutting the sense of grievance that is
always to be found in a province like B.C. — ``It's 3,000 miles from Vancouver
to Ottawa, but 30,000 miles from Ottawa to Vancouver,'' to cite Gerry McGeer,
Vancouver's colourful mayor in the 1930s — is to ensure that British Columbia
and the neighbouring province of Alberta are fairly represented in all federal
institutions. The proposed amendment with respect to Western provincial
representation is an attempt to bring this about, and I, for one, see this as a
modest but positive strike for Canadian federalism.
Will it carry the day? Can any piecemeal reform of the Senate of Canada win
the requisite approval across party and provincial lines that would be required
— in a minority Parliament to boot — without kicking off a firestorm like the
one that brought the last attempt at comprehensive Senate reform to a crashing
halt? I cannot say that I am wildly optimistic.
A valid argument is to be made for opening up the question of Senate reform
again, given the inherent limitations of an unelected upper house in a
democratic age and the regional inequality built into the present body. However,
surely for Senate reform to proceed, it should figure as a central plank in the
electoral program of a political party that has succeeded in winning the
confidence of the Canadian people in a federal election. That was not the case
for the Conservative Party in 2006, and it remains to be seen what place Senate
reform will occupy in the platforms of the different political parties the next
time Canadians are summoned to the polls.
The Senate committee's proposal reminds me of what F.R. Scott, in a
celebrated poem about Mackenzie King, once derided with these lines:
Do nothing by halves
Which can be done by quarters.
Doing nothing by quarters and eighths may be all that can be expected in a
terrain as riddled with minefields as Senate reform. However, I somehow doubt
that we can avoid confronting the entire range of questions that Senate reform
entails through the stratagem that the Senate committee has adopted. O Canada!
Gerald Baier, Canadian Bicentennial Visiting Professor, The MacMillan
Centre for International and Area Studies, Yale University, as an individual:
I would like to thank everyone for the opportunity to address you today on the
topic of Senate reform.
Unlike a number of the previous witnesses and those on the witness list, I
was not a participant in the constitutional wars of the 1980s and 1990s except
perhaps as a young but engaged citizen observer. I am, however, from the ``baby
boom'' of that generation. I received my undergraduate and graduate training
just as those battles were being processed and understood. While I do not have
the history of direct engagement that members of the committee and certainly
many witnesses have in those last rounds of constitutional change, I am steeped
in the reflections of some of those remarkable scholars, whom I am lucky enough
to call colleagues, several of whom are here today.
I will give the standard disclaimer that I am not a constitutional lawyer
either but I have made my living as what I would call a public law political
scientist, so my interest is in constitutional law but from the political
science discipline as opposed to from a lawyer discipline. I will leave it to
Professors Hogg and Monahan when they appear to give you definitive
constitutional answers, as they are the ones I would go to as well in some
I would like to address three issues that come out of Bill S-4 and the terms
of reference: the constitutionality of Bill S-4, the wisdom of the eight-year
term, on which I will have a little to say, and the Austin-Murray motion.
In the Senate debates and the examination of previous witnesses, I heard much
discussion about whether the contemplated change to the tenure of senators is
something that could be achieved under section 44 and whether the question
should first be put to the Supreme Court of Canada. My unequivocal opinion is
that this is a matter for section 44. My reading is that the contemplated change
is exclusively within the power of Parliament without resort to the amendment
procedures that engage the provincial legislatures. If you were to change the
method of selection or numbers, as in fact the Austin-Murray motion does, that
would, of course, be a different matter. In previous debates and committee
proceedings, a number of senators have pointed to the Reference Re: authority of
Parliament in relation to the Upper House of 1980. The Upper House reference has
support for the idea that the Supreme Court of Canada may not agree with this
view and that therefore a constitutional reference should be employed.
The court noted in that case that the 1965 change, which of course did cap
tenure at 75 and changed the length of term for senators, was constitutional and
was made without the consent of the provinces. Similar changes it hinted
presumably could have been made under the same process but anything that altered
the essential character of the Senate was at risk of needing a greater threshold
for amendment, engaging the provinces in the way the Supreme Court of Canada
argued in later references that the federal government should.
With all due respect, the reliance on the reference to answer constitutional
questions today is misguided as its authority is essentially precluded by the
changes to the amending formula that occurred in 1982; so reliance on that
amendment is not wise.
Remember that in 1980 the Supreme Court of Canada was writing in the absence
of a formal amending formula. As it did in the Constitutional Patriation and
Quebec Veto References, the court was trying to give clarity to the conventions
of constitutional change, trying to write the unwritten rules of constitutional
change at that point.
With the creation of the amending formula, the provinces and federal
government gave formal constitutional clarity to the question that the court was
struggling with in those references. In fact, in some cases, they created
hurdles for themselves that were greater than the court had found in those
references. The unanimity requirement was something the court said did not
really exist in the Quebec Veto Reference that in fact the 1982 amending formula
The result then is to create different categories of amendment than existed
before 1982. In effect, the landscape of constitutional amendment has changed as
a result of the formal constitutional change that took place.
The Constitution Act, 1982, gives those specific formulae in addition to
exempting some changes from the oversight of the provinces at all — namely the
changes contemplated by section 44, or perhaps more accurately those changes
``in relation to executive government of Canada or the Senate and House of
Commons'' not precluded by the provisions in section 41 to 43.
There is still the possibility that one might argue in favour of a
convention, as recognized in the Upper House reference, to not change the
essential nature of the Senate without provincial consent. This is the case of a
convention conflicting with a written constitutional rule. My colleague, Andrew
Heard, who I quoted about this before I knew he was appearing, has made the
argument that in the event of a conflict between a positive legal rule and a
fundamental convention, the courts should not necessarily default to the legal
formalist position of enforcing the positive rule. This is contrary to my
argument that the courts should not just rely on the clear language of the law
and give some reference or consideration to the conventions.
The real question then is whether since 1982 and the installation of a
positive legal rule for constitutional changes of a certain type — that is,
section 44 — a different convention has emerged about such changes. The
operative instance would, of course, be the mega-constitutional efforts of the
Meech Lake and Charlottetown accords, both of which required unanimity because
of their packaged nature.
We really do not have a clear answer necessarily in terms of whether there is
a convention because we had those unanimity efforts that were required of the
formal as well as the conventional understanding of the Constitution.
There is, though, one example of the use of section 44 to change the nature
of the Senate. The Constitution Act, 1999, which changed Senator Adams into the
senator from Nunavut and which brought Senator Sibbeston into your ranks, did
exactly what is proposed here. It made a discrete change to the Senate under one
of the categories not contemplated by sections 41 or 42. It added a senator for
the new territory of Nunavut. Thus, the change was even arguably more like the
ones that require provincial consent except, because it was not changing the
numbers of a province, it did not require the provinces to come along.
Even if one were to agree that the convention not to change the essential
character of the Senate exists — and I do not think it is for the Supreme Court
of Canada necessarily to decide — conventions have to be enforced by the public.
The public, as Professor Gibbins demonstrated, is sufficiently motivated to see
some change to the Senate and they will not, even at the urging of provincial
politicians who may not like the change, punish the federal government for
breaking that convention. This is, like it or not, the consequence of adopting a
formal amending formula. I do not think the court should just get involved as
the guardian of conventions in this case, given that there is some clarity. For
good or bad, the constitutional rules are there now and you can make those
changes on them.
Unlike a number of my colleagues who study courts and the Constitution, I am
a supporter of the formalizing role that the Supreme Court of Canada contributes
to the process of intergovernmental relations and constitutional change. That
said, I do not think the court has a monopoly on determining what is
constitutional, nor should the legislatures adopt the practice of deferring to
the courts pre-emptively. Senator Austin asked a witness whether or not the wise
advice should be — if in doubt, don't. As I have stated already, I do not think
there is much doubt, but I would not subscribe to the maxim ``If in doubt,
don't,'' even if there was doubt. As a matter of practice, I do not agree that
just because there may be a question of constitutionality, that the legislative
process should be put on hold until a reference is given. There may be instances
where constitutionality is less clear — for example, the use of federal spending
power in a new area of provincial jurisdiction. A reference might be helpful in
that case simply for efficiency in the sense that there would be the expectation
the provinces would object formally. I characterize the Anti-Inflation Reference
as exactly that kind of procedure.
Section 44 is the right way to go and is perfectly legitimate. All the more
important then that the committee suggest changes to the term. That brings me to
the second question and also to think about the question of renewability because
this is something you can do. The one thing to think about is some change to the
nature of the appointments.
In constitutional and institutional change, there is always a real danger of
unanticipated or unintentional consequences, and piecemeal change almost doubles
With one goal in mind, the federal government — the Prime Minister and his
cabinet — remedying the negative perception of appointment to the age of 75, has
chosen to make the eight-year appointment with the possibility of reappointment
as the first step, then presumably move on to the other characteristics such as
the method of selection and number of senators that engage a more strict
Those issues would require the agreement of the provinces. I welcome the
effort to do something about Senate renewal. I cannot really advise against the
incremental approach given the failures of the 1990s. However, there are some
issues that do bear careful thought given the possibility that comprehensive
change may not be completed by this Parliament and whatever changes are made may
not be accompanied by others for some time if the provinces are reluctant to
play along. The testimony of provincial witnesses, as you have coming, should be
helpful in that respect.
The move to an eight-year term is justified on the grounds that, under the
present system with no restrictions except the minimum age of eligibility and a
maximum age of service, you have the possibility of an appointed senator serving
45 years with no democratic check on his or her behaviour.
The spectre of the 45-year senator is a bit of a canard. I think in the
history of the Senate and of the 875 Canadians who have served in this body,
only one from 1885 to 1933 served 45 years or more.
If you expand the scope of tenure to 35 years or more, 28 senators have
served that amount of time — all appointed before the restrictions on tenure
passed in 1965 and those served for life. Among senators appointed after 1965,
only eight served 30 years or more and only one of them is presently in the
Senate, although not in the room at the moment, that being Senator Austin.
Out of 875 senators in total, only 59 have served more than 30 years. I do
not think the danger of long-serving senators alone is sufficient reason enough
for a limitation.
There was some comparison made in previous testimony. In the Canadian Senate
historically, senators served around 14 years. In the entire length of the
Senate's history, the current term tenure is closer to 10 years as many senators
have noted. That is fairly close to the average term for the U.S. Senate. The
comparison was made at the opening of the last Congress where the average was a
little over two terms, up to 12 years or so for most American senators.
Some might then argue, and we heard this, that an eight-year term is not much
of a change and only formalizes what has become practice. Senators noted in the
debates and in previous committee hearings that the trend has been to appoint
older senators, so the possibility of 45-year terms obviously is fairly remote
in those cases.
I think Senator Betty Kennedy was 74-and-a-half when appointed. I remember
remarking to a colleague that Mr. Chrétien had found a way to introduce party
discipline in the Senate because if he had someone in for such a short period of
time, she could vote on two or three bills and it was fairly easy to ensure she
did not have the time to grow independent.
I think the averages obscure an important point of service in the Senate.
Those who serve longer than the average, let us say 20 years or more, are going
to have a different perspective and comfort with the ins and outs of the
The American comparison is probably instructive here as well. I was a bit
surprised at the average when I looked at it being only two terms, because one
immediately thinks of senators in the United States Senate who have served
extraordinarily long periods of time: Edward Kennedy, 44 years; Strom Thurmond,
46 years; and Robert Byrd, who still trails our 48-year senator at
47-and-a-half, but counting he is running in this fall's election for an
unprecedented ninth term.
Senator Byrd has served on the appropriations committee of the U.S. Senate
since his first election. Talk about the institutional memory he has seen since
the 1950s, at least on that committee.
Research has shown in American political science that senators become more
independent over time, even in that two-year average. The longer they have been
members of an institution obviously characterized by less party discipline, they
still become even more independent over time from their party. However, they
will not always vote and agree with their party.
The problem with the eight-year term is it will unnecessarily restrict
senators from the possibility of that kind of longer-term service, at least if
you do not take renewability into account. In that sense, it will affect the
essential character and operation of the Senate.
With that said, I think that change can still be made under section 44, but
that is where my note of caution would arise. I do not have evidence for a
better term length, but it should be possibly a bit longer.
I am not here to flatter you by saying that senators are smart people but
that is the truth. You are people with lots of experience of the country, how it
works, how government works, what kinds of policies have the intended effects
and which ones do not.
I am inclined to agree with my political science colleagues who look at the
Senate, unlike Professor Resnick, as one of the bright lights of the legislative
process because real deliberation about the intent and consequences of the
proposed legislation takes place with less of a partisan background noise that
occurs in the other place.
The fact that, at present, the proposal allows for renewable terms helps to
fix some of that, but I take some evidence from other places where people have
renewable terms as a bit of concern. Canada's unelected administrative boards
and quasi-judicial tribunals provide an instructive example. Judges were brought
up as an example earlier but this is a better one. In the sense that six-year or
eight-year terms for the particular people who serve on those boards,
appointment is justified as a way of ensuring independence, but they are able to
be renewed. The result is that appointees have an almost immediate incentive to
In the Bell Canada case, the Supreme Court of Canada ruled that this did not
amount to a threat to the independence of members of the Canadian Human Rights
Tribunal. The fact they had these renewable appointments did not threaten their
I do not think that is necessarily the right reading. Of course, it is the
court's reading and is binding from that point of view but senators, like board
and tribunal members, will have to come from somewhere. They come from
experiences in public life, private life, in academia and so on, and they will
have to make important changes to the things they do as well as career prospects
when they get here.
To come for eight years presumably with the requirement they are resident in
Ottawa, at least in some period of that time, will require them to make changes,
some of them perhaps irreversible, once they get back to other jobs or whatever.
The Chairman: I hate to interrupt you but I am watching the clock. I
know you have quite a bit more text and, in particular, the Murray-Austin motion
to cover. I wonder if it would be possible to make your presentation a little
shorter and that will leave more time for an exchange of questions and answers.
Mr. Baier: I will move to the couple of points on the Murray-Austin
motion. I think this is a smart contribution to the question. I applaud the idea
of it starting in the Senate rather than at the executive federalism table.
The only thing I would say, in reiterating some of Professor Resnick's
points, is the thought about the shape of a future Senate after the tenure
question is determined should also give some thought to the nature of the
asymmetry that will take place in the Senate. Generally, the equality is off the
table. Some kind of weighted form will take place. I think that is the key to
what the Senate will look like.
I think the Murray-Austin motion is a step in the right direction by
addressing the question of medium-sized provinces in inventing the category in
Alberta and British Columbia. I think the real grievance is with the big
provinces and not with P.E.I. or even New Brunswick and Nova Scotia in terms of
I am happy to close with that. I apologize for taking too much time.
Andrew Heard, Associate Professor, Political Science Department, Simon
Fraser University, as an individual: I will focus initially on a few
comments about the problems with the constitutionality of the process underway
and whether Parliament has the power to implement Bill S-4 unilaterally. Then I
will look at some of the effects of Bill S-4 and assess whether they have an
impact on the essential characteristics of the Senate, or if there are some
other suggestions we can make simply to improve the legislation.
As we know, the government believes that Bill S-4 can be passed through the
unilateral process of section 44. It relies on the text of section 44 as
conveying to Parliament a unilateral power to make laws to amend the
Constitution of Canada relating to the executive, House of Commons and the
Senate. Certainly, the literal interpretation of the section would seem to make
it clear that this was within the power of the government and the Parliament of
Canada to do so.
However, senators during second reading debate raised the problems in
relation to the Upper House reference from the Supreme Court of Canada. It is
important to look at some of these concerns.
I think there is an alternative reading of section 44, which we should
consider — and that is, it is permissive rather than exclusive despite the
language of clause. Parliament may pass amendments relating to the Senate not
reserved by sections 41 and 42, but any section 44 amendment could also be
passed through sections 38 and 41, as the case may be. Although section 44 might
say that Parliament may exclusively make laws to amend the Constitution, this
power may not be as exclusive as it appears at first sight.
Number one, judicial decisions have several times in the past found ways to
circumvent clear language, saying something is exclusive or notwithstanding. A
good example of this is what the courts have done with exclusive provincial
jurisdiction. They have interpreted the peace, order and good government clause
to permit Parliament to pass laws in certain circumstances that would otherwise
be provincial legislation; this, despite very clear language that this is the
exclusive jurisdiction of the provinces.
Another issue is whether the language about section 44 exclusively to make
laws relates only to legislation. Does this preclude resolutions passed in other
legislatures to amend the Constitution? It depends on how one wants to view the
text and use the words. I will not pretend to have an answer. I raise this as an
alternative interpretation. Given the weighty and precise comments of the
Supreme Court in the Upper House reference, I think it is prudent for us to
proceed under the assumption that the court would read some kind of restrictions
into Parliament's unilateral power to change the Senate.
In particular, I think we can take the rule of thumb from the Upper House
reference that Parliament cannot alter a fundamental or essential characteristic
as this would require some kind of federal-provincial joint activity. Assuming
this guidance from the Supreme Court holds, you would want to look at the
provisions of Bill S-4 to see to what extent it may affect the essential
characteristics of the Senate.
One of the first things I would turn to is the involvement of limited term
senators. You all know that a number of senators since Confederation have been
appointed to terms that ended up being quite short and others have been quite
long. Bill S-4 would ensure everyone began with an eight-year term. How would
this impact the work of the Senate and how would these new senators be
integrated into the current Senate that exists now?
One aspect that I want to look at is the seniority system or informal
seniority system at work in the Senate. You know this far better than I. This
was just an interesting thing for me to have some kind of understanding of the
processes as an outside observer. However, the results are in Table 1 on page 5
of my written submission, and I think there is a clear process of gradual
integration and incorporation of new senators into leadership positions in the
Senate. Looking at formal positions, those for which people receive an extra
stipend, I use that as a guideline to see how people were incorporated into
leadership positions in the Senate.
Of those who have served eight years or less, 69 per cent have never held a
formal position other than being members of committees. When we look at the most
junior senators, those with less than four years service, 83 per cent have never
held one of these formal positions. On the other hand, looking at the most
senior senators, those with 12 years or more, only 8 per cent have never held a
formal office and currently 73 per cent of the longest serving senators are
holding one of these many formal positions within the Senate.
There is clear evidence of an informal seniority system at work and I would
take this to be not just last man in, last one at the table, but it is also a
case of recognizing the accumulation of experience one has working within the
Senate, that it takes some time to absorb that kind of professional
understanding and expertise of the issues to graduate to leadership positions.
Some new ones can do that from the start but most will take some period of
The other aspect is how short-term senators would impact on the Senate's role
as a repository of expertise — that in providing sober second thought, review of
legislation and policy investigations a period of rich professional experience
beforehand is important, but so is the period spent in the Senate as well. It is
a different position to view the matters from within the Senate than from
without. I have a concern that the eight-year term year limit would not be
sufficient to integrate new senators into the work of the Senate properly or to
enable the Senate as an institution to function as well as it could.
My suggestion then would be to consider lengthening this limited term if it
is to be and to consider a 12-year term. From what I have seen on the seniority
system it is about 12 years before members are really effectively and fully
integrated into the system. This would allow new senators coming in to integrate
with yourselves and who will continue in your positions for some years to come.
The next aspect I want to look at is the independence of the Senate
collectively and as well individually of yourselves as members of the
institution. The Senate has a relative degree of independence from both the
House of Commons and the cabinet. This is essential to your work in legislative
review. It is essential to your work in policy investigations as well. However,
that independence collectively is built on the independent mindset of each
In order to get some outsider's perspective of how things work in the Senate,
I conducted a study of formal votes held in the Senate between 2001 and 2005.
For me it was an eye-opening experience because it revealed a rich degree of
disagreement that many senators have and also underlined the importance of the
relatively low level of partisanship and the high level of collegiality one sees
in the Senate compared to the House of Commons.
Looking at the 125 formal divisions in this five-year period, a remarkable
statistic emerged, namely that 62 per cent of the formal divisions involved one
or more senators either voting against their caucus leader's position or
registering a formal abstention. In looking at individual senators, only 34 per
cent always voted with their own caucus over this five-year period. This
indicates a remarkable degree of individual assessment of issues and how to
Almost a third of senators dissented by one means or another in over 5 per
cent of their recorded divisions and, remarkably, 15 per cent of senators
recorded dissents in 15 per cent or more of their votes. This is good evidence
and indication of that independent role the Senate tries to play in the system.
The Senate is a political body. You are members of caucus, there is a procedure,
but for the most part there is an acceptance of a degree of individual
independence within that process.
I was also concerned whether there would be some impact in bringing
short-term senators into this institution and whether they could acquire this
amount of independence of thought within as short a period of time. I classified
senators in my study between those who have served eight years or less and those
who have served longer. I was surprised that for the most part the two groups
voted relatively the same. There were a small group of long-term senators who
disagreed with their caucus position much more frequently than others but, apart
from the small group, the two sets of long-term and shorter-term senators tended
to agree and disagree with their caucuses in much the same levels. I take this
as evidence that the culture of independence is widely accepted in the Senate
and is readily acquired by new senators joining the institution.
This independence is in my mind important to try to preserve. This brings me
to the topic of renewable terms. I have considerable concerns about the impact
of renewability on the independence of senators and the Senate as an
Prime Minister Harper explained to this committee that the possibility of
renewable terms was included in order to accommodate future elections or to
encourage appointed senators to do more work — something along those lines. The
problem I see though is that a Prime Minister may punish senators who voted
against the government with any kind of frequency. It would be a novel
development indeed for prime ministers to offer a renewed term as a reward to
senators who had voted against the government's positions with any frequency.
Notwithstanding Senator Segal's appointment, 95 per cent of Senate appointments
are to the Prime Minister's own caucus, so I do not see many prime ministers
renewing the term of opposition senators either. In both these respects I
believe prime ministerial discretion would erode the independence of individual
senators and the Senate collectively as an institution.
The last matter I would like to talk about is mandatory retirement. Bill S-4
would maintain mandatory retirement at age 75 for current senators, but new
senators would not be subject to this limit. They would serve out all eight
years should they live that long.
This is part of a trend, I believe, to do away with mandatory retirement
usually at age 65, and this is based on increasing life expectancy rates over
the last century. However, the reality of life expectancy rates is that a large
portion of the population is already dead at that time of average life
expectancy and many others suffer debilitating infirmities and illnesses.
Therefore, I have a concern about raising the age limit. In looking at the
actual mortality rates among senators over the last 40 years, the wisdom in
maintaining mandatory retirement seemed clear to me.
In looking at the senators appointed since the 75-year mandatory retirement
began in 1965, we can see a picture that indicates a problem in doing away with
mandatory retirement. Of the 275 appointed, 101 have died at an average age of
76 and 65 per cent have died before the age of 80. Since 1965, 22 per cent of
individuals appointed to the Senate have died in office, and many others suffer
illnesses and infirmities that impact on their ability to work as effectively as
I feel that it is probably unwise to do away with mandatory retirement; the
level is fairly high at this point. I feel it is ironic that Bill S-4 is
intended to breathe new life into the Senate and yet it would abolish the one
change we have had since Confederation that actually did achieve bringing some
new life into the Senate.
I would like to conclude with my recommendations for some amendments for the
committee to consider. I believe Bill S-4 should be amended to preclude renewal,
prime ministerial discretion, in my view, will restrict the independence of many
senators, eroding one of the essential characteristics of the Senate.
I believe that elimination of mandatory retirement threatens to turn back the
clock on the only substantive reform since 1867. Bill S-4 should be amended to
provide for mandatory retirement at 75 for all senators.
Finally, the current proposal to institute an eight-year limit does not
appear to leave enough time for new senators to be fully integrated into the
working life of the Senate. Neither is it long enough for most new senators to
accumulate the experience needed for the Senate to act effectively.
In my view, Bill S-4 should be amended to increase the term to about 12
Senator Murray: Professor Heard, Professor Baier and Professor Resnick
both had something positive to say about the constitutional amendment proposal
that Senator Austin and I put forward to increase western representation in the
Senate. Do you share their views or do you have others?
Mr. Heard: I do, and I apologize for not having included that in my
formal statements. I am glad you provided me the opportunity to address this
Having lived in British Columbia for 14 years, the deep sense of western
alienation that is occurring out there and in Alberta has become clear to me;
part of it is aimed at an institutional structure. For better or worse the
Senate has become a symbol of this institutional exclusion and
under-representation. I think it is important to many British Columbians and
Albertans, as well as Prairies people, for some redress of this.
The balance of representation is a historical anachronism and has not kept
pace with the population. In debates earlier in the Senate, I believe there was
a good history of how the Senate had accommodated these changes up to a certain
point and then it has been frozen in time. You have done us all a great service
by introducing this motion. It is high time it was discussed.
Senator Murray: One of the great advantages of it, we think, is that
it is a stand-alone amendment. It is not part of a great package like Meech Lake
or Charlottetown. It is not a seamless web.
If we pass this resolution and it goes to the provinces and another consensus
was to emerge in terms of increasing representation, the Senate could reconsider
and amend it without any great difficulty. We could have an amendment proclaimed
in that fashion.
The problem with Senate reform proposals that went forward as part of a
greater package is that they sank when the rest of the package did. We think
this, as a stand-alone amendment, is supportable on its own merits, even in the
present appointed Senate. If nothing else were done, we believe that increasing
western representation is something that is long overdue.
With regard to Bill S-4 and the Harper government's attempt to impose an
eight-year term on future senators, Professor Resnick put his finger on the
politics of this. Something that a lot of people who instinctively support the
idea of term limits for senators have not quite focused on is that the
eight-year term — renewable or non-renewable — means greater turnover, equals
greater power, greater political power for the Prime Minister, because we are
talking about an appointed Senate here. That is all we have at the moment. An
elected Senate is a hypothesis for the future.
Professor Heard, you have expressed some reservations about the
constitutionality of Bill S-4, as to whether Parliament has the right to enact
Professor Baier has no such reservations, as I understand him. Furthermore,
he does not want it referred to the Supreme Court. Professor Baier, your
position seems incongruous in that you find quite acceptable the idea of a
reference to the Supreme Court for a matter like the anti-inflation bill of the
Trudeau government or some hypothetical new program, new exercise of the federal
spending power in areas of provincial jurisdiction. Is it not rather incongruous
that you would find that acceptable, but you find it unacceptable that the
government would refer, to the Supreme Court of Canada, a matter that turns on
the power of the federal Parliament to amend the Constitution with regard to the
tenure of senators?
Mr. Baier: Let me speak to the example that I used and why I think it
is a good example of using the reference, and then why I do not think it is
necessary in this case.
My position is not that pre-emptive references should never take place.
Obviously, I am on the side that they could. I hate to use the term ``small''
constitutional change, but I think in the history of constitutional change that
we have seen, this amounts to a fairly small change, as opposed to Meech Lake or
Charlottetown or those kinds of packages, as you pointed out.
In anti-inflation and in my other hypothetical, the presumption is that the
provinces are stating their objections very clearly in the midst of the process.
My recollection of anti-inflation was that Prime Minister Trudeau chose to refer
the legislation because unions, chambers of commerce, businesses and others were
rallying to challenge the legislation as soon as it was put into place. There is
an efficiency argument to be made to say, let us find out about
constitutionality under ``peace, order and good government,'' et cetera, before
that whole process comes in.
I would go back to what Professor Gibbins said earlier in his testimony. I do
not see the provinces clamouring to stop it this time. I do not see anyone other
than the people in this committee who are asking the question of whether this is
a good idea or not asking for that, so I do not see the obvious challenger to it
once it is passed. If someone wants to challenge it once passed, a reference or
even a ruling of constitutionality would be fine. I do not see the need for it
now. It suggests that we want to delay. There is a minority Parliament and the
court will take a while.
Senator Murray: You do not think that a serious division among
experts, like yourself, would be sufficient to impel the government to refer?
Mr. Baier: I would put myself lower on the status level of whether my
opinion should raise the alarms or not.
That is not reason enough. I also think that the fact that things have
changed since 1980 matters a great deal.
Senator Murray: I am coming to that.
The Chairman: Before you go to that, perhaps other panellists wish to
comment on this matter at this point.
Senator Murray: I can ask my final question and others can respond.
Unlike Professor Heard, you seem to think that the Senate reference case in
1980 has been overtaken by the 1982 amending formula. Professor Patrick J.
Monahan will appear before the committee in a couple of days. In his book,
Constitutional Law, he says that the 1982 amending formula, section 44, was
intended to replace section 91(1) of the Constitution Act, 1867. As well, he
states that section 91(1) was construed in an extremely narrow fashion by the
Supreme Court of Canada in the Senate reference. He also states that the
significant exceptions to section 44 that have been included in sections 41 and
42 suggest that the drafters of the new federal amending power were attempting
to codify the Supreme Court's analysis in the Senate reference.
The Supreme Court's analysis was that 91(1) was for housekeeping matters. The
drafters of 1982 could not have codified what the Supreme Court said about
tenure of senators because the Supreme Court said it depends. The Supreme Court
decision stated that at some time a reduction of the term of office might impair
the functioning of the Senate. The decision also stated that the imposition of
compulsory retirement at age 75 did not change the essential character of the
Senate; however, to answer this question, they needed to know what change of
tenure was proposed.
The question before all of us and, I suppose, before the Supreme Court in a
reference, is whether a change from age 75 to an eight-year term is ``mere
housekeeping,'' in the words of the Supreme Court in 1980, or whether it is a
fundamental change to the Senate.
Mr. Baier, do you agree with Professor Monahan's analysis.
Mr. Baier: All my books are hidden somewhere at the University of
British Columbia and so, unfortunately, I do not have as much reference material
as the senator has. I will leave it to Professor Monahan to argue his point.
In defence of my interpretation in respect of the contemplated changes in
sections 91 and 92 — the codified version of the essential character of the
Senate — when the drafters of the 1982 amending formula sat down to determine
what is not merely housekeeping, they thought of the number of senators for each
province and the method of selection. Those were the real issues that concerned
them. Tenure did not appear to be a concern and was likely thought to be a mere
Senator, you point to the reference and ask when it stops being mere
housekeeping. Professor Heard's argument in his written brief is that once we
make the change to eight years, it will change the essential character such that
it will make the constitutionality of Bill S-4 doubtful.
The court was trying to give flesh to those unwritten rules. My further
argument was that it was never exclusively the court's role. It is up to the
legislature to provide some idea as to what conventions are and it is up to
voters to give some idea as to what conventions are. If conventions cease to be
useful, we no longer enforce them. There are many ways in which that happens.
The move to a formalizing of the amending procedures for elements of the Senate
tries to eliminate or give more certainty to what is needed to meet that high
hurdle. Certainly, changing the tenure of senators to one year will change the
essential character of the Senate in a way that others would not.
If the government were to propose changing the tenure of senators to one
year, the public would do what publics do when they try to enforce conventions —
there would be a greater public concern about that move. At eight years, the
territory is less clear.
Senator Murray: That is all the more reason it should be referred. Do
Mr. Baier: I do not accept the court as the final determiner. The
court is the final arbiter of formal elements of the Constitution, but it is
weaker on convention because many other forces should be involved.
Senator Angus: Professor Resnick, were you aware of the evidence given
earlier today by Professor Gibbins?
Mr. Resnick: No, I did not hear that testimony.
Senator Angus: Listening carefully to what you have said and having
read your submission, I sense that you are on a different page than the other
three gentlemen. You said that you are a survivor of the constitutional wars of
the late 1980s and early 1990s. Could you tell us what your role was at that
Mr. Resnick: ``Survivor'' is of course metaphorical in this case. As
an academic and an occasional commentator on political affairs, how could one
have avoided the entire fracas that surrounded both the Meech Lake Accord, its
eventual meltdown, the lead-up to the Charlottetown Agreement and its ultimate
defeat in 1992? As a close observer and occasional, modest participant in the
whole process, it is hard not to have been somewhat cauterized by the whole
thing, as I suspect many of the politicians, including many in your own ranks,
would have been. That is really what I meant.
Senator Angus: You and they were likely traumatized, given some of the
issues that surrounded Meech Lake. Your résumé contains a number of impressive
publications. I am an ``ami Québécois'' and am impressed by your true
involvement in the two principal languages of our country, having written in
both languages to such a degree.
Being an ``ami Québécois'' and having absorbed information from other briefs
and commentaries provoked at these hearings, I would suggest that it might be a
Québécois position that the status quo is the only reasonable answer. One could
infer that that is your position today. Could you comment?
Mr. Resnick: I am really very supportive of the amendment by Senator
Murray and Senator Austin. Since that is considered to be the subordinate part
of the affairs of this committee —
Senator Angus: It is clearly ultra vires of this Parliament in terms
of doing it.
Mr. Resnick: Doing it will require the participation of seven of the
10 provinces; there is no doubt about that and I will not argue that point. They
are accurate in terms of touching that point, but it comes down to the old
problem of going for the whole thing at once. That is why I make a cynical
reference to the Scott poem about Mackenzie King. I am also one to realize that
sometimes things must be done incrementally, and if you try to go for the whole
thing, nothing will happen.
Referring back to the debate of the late 1980s and early 1990s, there was
also in the air an endless debate about democratic legitimacy and whether 10 or
11 men in white shirts in closed rooms had the right to make the kinds of
changes being broached in both Meech and Charlottetown amid the cry for greater
democratic participation. That matter is front and centre in this question of
Senate reform. As I did say a couple of times in my brief, I really do believe
in a version of an elected of the Senate, similar to that of Australia and the
United States, not necessarily their version but a form of it. We should aim for
that but if we are to be successful, we will have to proceed in a much more
frontal way. One of the mistakes of the earlier debates, as Senator Murray
pointed out, was that it got caught up with many other issues — distinct
society, the Canada clause of the Charlottetown Agreement. In other words, far
too many things were being addressed.
I will make the comparison with patriation and the Charter. One could argue
fairly how the PQ government was very negative, of course, for the whole of what
ultimately transpired, but Pierre Trudeau did have a mandate, it is fair to say,
given not only his election in 1980, but more important the outcome of the 1980
referendum in Quebec, to take the constitutional question and run with it. No
one could argue about that although we could argue the content. I do think, in
this case, there is an argument that if we are really going to tackle the larger
question of Senate reform — which ultimately includes representation but also
includes the form — ability to be elected I suppose — I cannot see how it could
be done without making this a fairly frontal part of a program of the party
which comes to power and runs on this making it clear this will be one of the
major issues, not the only one, but an important issue that will be brought up
Under those circumstances, I am not convinced that a form of Senate reform
could not be engineered but it will require the willingness on the part of the
future elected government, I suppose, to be able to do that and be willing to do
that. Also, I do not see myself here as an advocate for Quebec at all, but to
return to what Professor Heard was saying earlier, there are problems with this
eight-year term. I think some of the details of that have not been worked out,
particularly the problem of having the Prime Minister appointing the senators.
If there is going to be an eight-year turnaround, we will have a wall-to-wall
Senate of essentially one party with a few ``Hugh Segals'' appointed by Prime
Minister Martin, but very few, breaking up the even more partisan type of
chamber. There are many problems with going the route of just this eight-year
term that make me, at least, very reluctant to endorse it.
Senator Angus: You have led me to the principal questioning I wanted
to ask you in terms of this. Are you familiar with the fact that indeed Senate
reform was a very up-front plank in the Conservative Party election platform,
not only coming from the Montreal policy conference, but also in the actual
printed election materials? You said yourself that it is a well known fact that
Prime Minister Harper has always been a strong advocate of Senate reform and
repeated that over and over during the election.
Mr. Resnick: I certainly know that Prime Minister Harper has been a
strong advocate of this for a long period of time, there is no doubt about that,
but I return to the constant reiteration of the five points that kept being held
up. I do not recall Senate reform as one of the five key planks of what a
Conservative government was planning to do if it came to office. Reform of the
health system in Canada, child care, we could go through those; those were the
ones that were really given the spotlight. Not that the Senate has to be made
front and centre, but if we were going to get into the larger subject of Senate
reform it will have to have a more central place in a party program and then a
government will have, I think, a great deal more legitimacy in saying that we
have this as part of our mandate.
Senator Angus: In Ottawa today certainly two of the parties that are
well represented in the House of Commons, as well as some provincial
governments, are in favour of abolition of the Senate. If we do not want to get
into the type of wars that you allegorically referred to — the 1980s and 1990s,
Meech and Charlottetown — what would your position be as an alternative to
abolition of the Senate?
Mr. Resnick: In a federal system there is a legitimate place for an
upper house which, in some sense, represents the regional principle. That is the
underlying legitimacy of a second chamber in a federal system. I cannot think of
a single federal state that does no have an upper house which in some sense is
supposed to be a house of Länder, the provinces, the states whatever they are to
I do not happen to support the position — I did in an earlier period of my
life — but I do not really find the argument very compelling. This argument
really has to deal with much more the sort of things we are discussing a little
today and does come up periodically in these debates: The nature of the upper
house and does it really do a good job of representing the regions. This is why
I think Senators Murray and Austin's amendment is a good move in making it a
little more territorially representative than the current one and the larger
question of representation in terms of the kind of legitimacy it will have
either as a directly elected body or the German version of the house of the
provinces, but that raises all kinds of other questions.
Senator Angus: In terms of Bill S-4, I know some is tongue in cheek
and I was a student of Frank Scott and everything we learned was always put in a
way that made it interesting and beyond the dry words of constitutional law, but
I think you are damning Bill S-4 with faint praise and not giving credit to it
as a very legitimate and reasonable first step and sincere effort to modernize
and renew the Senate.
Mr. Resnick: Perhaps I am the sceptical one in what otherwise is a
chorus of approval. I made my dissent from that clear in my brief. Ned Franks
was not exactly enamoured of this, but he is a believer in the existing body
unamended and I do not share that view, either.
Senator Fraser: I suppose this is a question to all of you. In terms
of legislation, not in terms of the motion for amendment in terms of Senate
seats but in terms of the bill now before the Senate, I am perplexed whether it
is possible to square this circle. We have been told, and it certainly seems
plausible, that this bill was drafted in the light of plans to move to an
elected Senate. However, as everyone seems to be agreed, movement to an elected
Senate is going to be a long-term or longer-term proposition, quite likely to be
a longer-term proposition, in which case we would be considering a bill to
change the terms of appointed senators. It has seemed clear to me for a long
time that there would be a fundamental difference in the nature of an appointed
versus an elected chamber in the way it worked, in the way its members
approached their jobs, in many elements.
The bill, it seems to me, has more logic in terms of an elected Senate:
Renewable terms, shorter terms; the kinds of things that you associate with
elections — perhaps less so in terms of its implications for an appointed
chamber, which is what we are stuck with for the foreseeable future.
Do you think it is even possible to consider a bill of this nature before we
know whether and what an elected Senate would be? Will we get an elected Senate
and, if so, what would it look like? How would it be elected? What would its
powers be? Is it possible to pass, in your view, one piece of legislation that
will apply appropriately both to an appointed Senate and further down the road
to an elected Senate?
Mr. Heard: This legislation must absolutely be considered in a vacuum
because that is the only knowable certainty we have at this time. The bringing
forward of consultative elections is extremely problematic and would raise some
very lengthy constitutional problems so this bill should be considered on its
I believe all the more so that we should take our time and consider whether
this is the model you want to impose or implement, because something once made
has a habit of hanging around for a long time.
I was here about 10 years ago talking about the regional veto formula. We are
now left with this, and Senator Hubley's province of Prince Edward Island is now
disenfranchised because there is no combination of Atlantic provinces that
requires Prince Edward Island's participation. To the extent that the other
Maritime provinces remember their promise to Prince Edward Island, Newfoundland
is disenfranchised. It would be very remiss of this body not to consider the
Would a Senate modeled on shorter-terms or finite terms be a workable
innovation? Is this a good idea? Does it have merits? Can this particular
proposal be improved? I think there are good things to say about it, but I also
think that serious amendments are needed to improve this legislation.
Mr. Baier: I am a little less worried about the idea that something
once made is harder to change. In fact, there is something reasonably ingenious
about this being the first step. If I were to take out the crystal ball, the
first Prime Minister who appoints every member of the Senate might be the
tipping point at which the provinces start to talk about it in a way that the
gun is to their head as opposed to in the ways that we have in the past. The
Senate that does some good work now, so you have a perfect idea of what a better
Senate would be. You can always hold up. If you do not agree about what
constitutes the perfect Senate, you still have a decent body to fall back on. If
you have a Senate made up of 100 per cent of the government-in-power's
appointments, with dependence on that government for re- appointment, at that
point the existing institution will be enough to maybe scare the provinces into
coming to some necessary changes.
Given that the next steps require a greater threshold for amendment, that
movement might initiate some of the change that the provinces might otherwise be
reluctant to do because they would then see the need to come along.
Mr. Resnick: Senator Fraser, I heartily agree with you that what is
being proposed would make a lot more sense for an already elected Senate than
for the appointed the body we have today. We could argue about terms of eight
years or six years, but obviously senators will not be elected ad infinitum, so
there will be a fixed term.
The question of renewability would be a legitimate issue to raise if we are
to have elected senators. Logically, we would probably want to have some
re-electability, although you might want to have a two-term limit. One could
argue that when the time came. I am not sure that is what is being conceived
The Prime Minister made it very clear, in his testimony to your committee and
on more than one occasion, that he does believe in an elected Senate. He is even
thinking that maybe there is a way of having elections without changing the
Constitution, having senators elected at the same time as perhaps members of
Parliament, province-wide or something, and appointing them without changing the
formula. Heaven knows. I think that would be a very complicated route to go and
would raise many serious concerns. Logically, this type of change makes much
more sense for an elected than for an appointed body.
I want to go back to Senator Angus's point. I am not trying to say, ``What a
waste of time.'' I can understand the frustrations. The major blockage has
basically been the follow-through, or the constitutional change, ever since the
defeat of Charlottetown. That is leading senators and members of Parliament to
say, ``Well, maybe we should try to do this in a slightly more piecemeal
fashion, and this is a way to go.'' However, the unintended consequences of this
would be, in the short term, to strengthen the power of the Prime Minister and
an appointed body. It may be that my colleague Professor Baier is right and that
this would be the gun to the head which would then force the issue of changing
the system altogether to a much more democratically legitimate body and it would
be put on the agenda, but if we are to do that, there are other ways of
Senator Tkachuk: I think we should be looking at the eight-year
appointment separately. It does not have to be looked at in a vacuum, but it has
to be looked at on its own merits. I have yet to hear the arguments strongly put
that senators must be here for longer than eight years in order to provide and
fulfil the functions of the institution that exists today. I have heard a lot
about elections and prime ministerial appointments. The appointments are done in
stealth rather than the wide open, as they would be in that particular case, and
the public would decide whether the Prime Minister was overstepping his bounds.
Professor Heard, on the analysis of voting that you did between 2000 and
2005, how many of these divisions or so- called independent votes or bills were
Mr. Heard: One of the things I found most interesting about the way
the Senate worked is that some of the most contentious things did not appear in
the recorded divisions. Bills were amended during this time and there were
serious problems with some bills, but in that period of time, none of these
recorded divisions resulted in the defeat of a bill.
Senator Tkachuk: From time to time, the Conservatives may have
supported a piece of legislation that the Liberals had put forward, and
therefore they would have voted differently. The Liberals during that period
also had a large majority of senators. Therefore, many senators could safely
vote against a particular bill that the government was putting forward without
threatening the legislation itself. That goes to the whole argument of the
independence of senators. I do not think the statistics and the numbers are very
strong. Basically, senators follow the party whip and vote the way the party
wants them to vote. I am not sure if that was the initial reason for
establishing the Senate, but nonetheless that is what exists today and that is
what we are dealing with today.
I was interested when Professor Resnick talked about his support of the
Austin-Murray motion. Why do you support 12 senators for B.C. and 10 for
Alberta? Why not 12 senators for Alberta?
Mr. Resnick: I would support 12 senators for Alberta. Ideally, I think
that is the way it should be done. Because it is only 10, therefore better to
sink it? Logically, it should be 12. On the other hand, if we say that, then
should Saskatchewan and Manitoba be given seven, since logically smaller
provinces should probably all be the same? Nova Scotia and New Brunswick have 10
senators each, which makes no sense either, except that is the way things were
done way back in 1867.
I simply was prepared to support this as a step in the right direction, but
as I think I did argue, if we were really to redo this on a more serious basis,
I would not be doing it by changing it every three days. One would have to put
in some kind of population criterion. The two large provinces, Quebec and
Ontario, would have a full quota. For the middle-sized provinces, both B.C. and
Alberta, I do not think the difference of 4 million to 3 million is big enough
to merit any finer distinction, and they would get the 12 senators each. The
smaller provinces would be down to six senators, except for Prince Edward
Island. That is an ideal if we were to really redo the distribution in a more
serious and intelligible way.
Given that such a distribution would open up an even bigger constitutional
matter and would require practically unanimous consent, under the circumstances,
this is probably as good as we will get. Frankly, if the numbers were amended to
be 12 and 12, I would have no problem with that.
Senator Tkachuk: Maybe the other professors could help me through
this, but I always thought the reason that Quebec had 24 and Ontario had 24 was
Quebec was afraid that their language rights and other issues that they had,
being French Canadians, would be threatened; and the Maritimes were afraid that
Upper and Lower Canada would have too much power because of ``rep by pop'' in
the House of Commons, and therefore needed to have the senators to balance it
out. It seems to me you are arguing in your paper and just now that you are
proposing a totally different kind of Senate.
Perhaps that is what Senators Austin and Murray — I do not want to speak for
them — are proposing, too, that there would be a Senate based on population. I
know Senator Austin inferred that in the Senate. It seems to me that if you are
going to do this, perhaps B.C., if it is a region, should have 24. Why would it
only be half a region? Otherwise, why are we changing the numbers to suit
population? That is what the House of Commons does.
Mr. Resnick: I will intrude before my colleagues respond because I am
stuck with this teleconference format.
There is a logic to the system. We will have five regions and each should
have the same amount. Indeed, B.C. should have exactly the same as Quebec,
Ontario, the Prairies and the Maritimes. In my head — this is my own two cents
and I will not argue this is more than that — since I did refer to the model in
Germany, I do find there is a certain logic. On the one hand, you want the
provinces to be represented in the sense that there is another way of getting
the voice of regions and provinces into the upper house. On the other hand — and
this is where I did break with the Triple-E idea, which I did not support in the
early 1990s when it was much touted in Western Canada, particularly by Reform —
I do not see why, just because the United States and Australia opts for a formal
equality of the states, it follows that we have to. There are other ways of
I do think a measure of population should be taken into account, but only a
measure. The truth is that if we had a system of 24, 24, 12, 12 and 6, Ontario,
in particular, would still be significantly under-represented as compared to the
share it has in the House of Commons. I am not sure where Quebec would be with
its 24 out of 120; it would be a little closer to where its population is
You are right, incidentally. Historically, the argument you were giving about
the reasons for these divisions and the 24 included Quebec's and the Maritimes'
susceptibilities. To a certain degree we have gone beyond the original. The West
was a very minor part of Confederation in 1867; to that degree, the world has
I do not detect in B.C. a wave of demand for 24 seats or we leave; it is not
that sort of thing. The feeling would be that an enhanced place for B.C. — and
for Alberta, for that matter — in a more regionally representative Senate would
be the right way to go. Perhaps the figure of 24 is too much, but I think I
would be comfortable with 12 for B.C. in the way that I could see a revised form
of representation for the Senate eventually being engineered.
Mr. Heard: One thing I do like about the current proposal is it does
not create multiple regions. The Prairies, I gather, are lumped as one region
and British Columbia is essentially half a region. I like the symmetry of that
in the sense that I am concerned about the proliferation of regions, that it
will not be long before we get into every province is a region of its own.
We have the creation of representation of regions for various reasons. The
Murray-Austin proposal builds on this by creating the Prairie provinces as a
region, recognizing that British Columbia is not the size of Quebec and Ontario,
and so perhaps should not have that level of representation. At the same time, I
share your concern that one wants to avoid representation by population on a
provincial basis because that is what we have in the House of Commons.
I also want to take a quick step back in time just to properly answer an
earlier question before I pass over to Professor Baier. From 2001 to 2005, about
10 per cent of bills were amended by the Senate coming up from the House of
Commons and the House of Commons disagreed with several of those bills. There
was a period of some tussle between the two Houses. The individual independence
of the senators did matter at that time. In my study I was not keeping track of
which votes were being held on which bill.
Mr. Baier: I would not characterize what Professor Resnick suggests as
representation by population; it is creating a different set of categories, the
large, small and medium categories. It is not exactly accurate to call the House
of Commons ``rep by pop'' either. If it was, Prince Edward Island would have
fewer seats, and so would Saskatchewan and New Brunswick.
The population categories work well because Quebec happens to fit in the
large province category, so you can still be worrying about language and other
things without necessarily explicitly doing it. There is some genius in making
some of those accommodations without actually coming out and saying you are
giving that kind of representation specifically for those reasons, I think that
the population thing does it without really being about population; it just
makes good categories in that sense.
Senator Hubley: I wish to speak about regionalism. I believe we have
overlooked one of the Senate's most important mandates, which is to represent
regions and minorities. Unfortunately, we have talked a great deal about
population size, where people are, and that that is going to in some way
indicate numbers within an elected or non-elected Senate. If we do not expand
our thinking of what regions are, we will miss much of what Canada is.
I would like to refer to the North, whether it be Northern Ontario or
Northern Quebec, which is certainly a northern region. I would also like to look
at coastal areas; I would like to think of those as regions. I would certainly
like to support our Aboriginal communities as minorities. If we are going to use
a formula of numbers to reflect representation within either the House of
Commons or the Senate, I think we will miss out on what we are as a country,
which is really important.
Going back to 1867, I do not think it is altogether a bad idea, in some
instances, to look to our past and what that has provided to us as a country in
moving forward. I am not against moving forward. However, I do want to underline
what I feel regions are and what my role in representing those regions and
minorities is. That cannot come under a numbering; it cannot be part of a
formula because it is so varied and diverse that we have to be able to respond
to the needs of our communities and regions even though they do not have a major
I will have you comment on that; but I will go back to Confederation and the
representation of Prince Edward Island. I do not mind you saying that we have
got more numbers than our population would support. Therein lies the strength of
this country. We are a province of Canada and we have the same right to
representation as other parts of the country have.
To do that, we cannot tie that to a population on Prince Edward Island which
will not increase dramatically over the coming years. In fact, we may be
decreasing as we educate our young people and they go further to the West to get
job opportunities. In our region, that is a way of life right now.
It is disturbing. We have to be able to address that in the Senate, as
strongly as the House of Commons would represent with their numbers of people,
the population card, shall I say, behind them.
I would like to have your comments on that. I felt it was lacking a bit in
the presentations. I feel strongly about that.
Mr. Baier: I take the point very clearly. Having four MPs and four
senators for Prince Edward Island does not bother me in the least, in the sense
that a deal is a deal. With Confederation, you come in on terms and you can
change those terms, but you need the consent of the people involved in the deal.
Obviously, Prince Edward Island will not agree to something that will limit
that, and that is perfectly fine. Senators can tell me, but I do not think that
the Prince Edward Island caucus has destroyed some consensus that the Senate
otherwise had with its vast numbers in terms of making that a problem. Four is
even just symbolic in that sense. You have four members of Parliament. In the
size of the House that does not break the tie, although certainly in the spring
it did. Most of the time four votes would not break the government.
That should be continued. That is what is good about the Austin-Murray
motion. It is much more subtle than Triple-E in that it is not trying to put it
to some formula. Maybe you do not like small, medium and large provinces, but
that uses different kinds of criteria to do some of the same things in the end.
Mr. Resnick: I do not think the question of four or perhaps three
seats for Prince Edward Island is the deal breaker here, nor am I trying to
retroactively re-think 1867. The arrangements made perfect sense, given the
regional breakdown of the country back then and that Western Canada, at that
point, was largely still an unpopulated tract of land with very a small
population compared to central and even Maritime Canada.
How we define regions is one of those eternal questions. Regions are not just
provinces or parts of them; there are regions within regions. Rural-urban Canada
is one of those great divides that characterizes many provinces within this
country. That is true as well.
On the other hand, when the time come to address representation in the
Senate, then this big, small and medium element will make some sense. That kind
of definition, which, incidentally, would include Saskatchewan and Manitoba,
both small provinces — it is not just the Maritimes being singled out here —
would make perfect sense in terms of the kind of representation that would be
given under those circumstances to each of the provinces of Canada in the upper
house. The lower house will continue to be representation by population except
for those provisions by which Prince Edward Island benefits without question,
which ensures a province will have no fewer members of Parliament than it has
senators. That is as far as I am prepared to go.
Mr. Heard: It is important to distinguish between senators and the
Senate acting as a chamber of regional representation in the sense of regional
advocates and the Senate acting as a forum for regional participation in the
national process. My understanding of the Confederation agreements is the upper
house was seen as providing added opportunities for participation of the
Maritime provinces with respect to the two larger ones. That is how I view the
way it should be.
It is important to emphasize the Senate as an opportunity of participation as
opposed to regional advocates. Certain advocates of Senate reform have
misunderstood some of that.
In that light, it is all the more important for the Senate to take a stand on
issues where regional interests are at stake. Something like the regional veto
formula where a province was disenfranchised is a travesty. I understand the
dynamics of post-referendum Canada at the time, but for the federal legislation
just to disenfranchise a province is unbelievable.
Senator Comeau: Professor Baier, you did not touch all that much on an
area that Professor Resnick just referred to; that is, the urban versus rural
possibility of looking at Senate representation. I was kind of disappointed
because as a young academic you have not been caught up as a survivor of the
wars as referred to by others. You do not have the scars of Meech and
Charlottetown, so your reputation or your good name is not tarred in any way by
those previous battles. I would have hoped a young academic like you might have
looked not to the past as the answer, but rather to the future, by looking at
what Canada is at the moment.
Regarding Professor Resnick's reference to the rural versus urban, that is
probably the greatest divide we have in Canada right now. For example, I
probably have much more in common with Senator Watt's area of Northern Quebec,
Senator Hubley's area of Prince Edward Island and those coming from fishing
communities of the West Coast of Vancouver Island than I have with people living
in urban Montreal, urban Ottawa and urban Calgary. Yet the debate that we seem
to be looking at, and I refer especially to Senator Murray and Senator Austin's
motion, is to look at a kind of provincial jurisdiction and provincial numbers
rather than the reality of Canada as we see it today.
You and your colleagues are probably in the new circle of academics that is
not the same as the 1980s and the 1990s. What are your comments with respect to
Mr. Baier: First, scars may not be external but they are certainly in
a true Freudian sense internal. I picked it up in my youth, so it is all in
The thing that I like about the Austin-Murray motion and the point I made in
my written brief about taking into account some of this asymmetry is to deal
with the things you are talking about. My experience of Canada as a young
person, or as an increasingly less young person, has been several provinces in
all kinds of situations. I have lived in small towns in Alberta, as well as
Toronto, Vancouver and Fredericton. I have a sense of all of those issues that
you have talked about. The way the Senate works presently has the chance to do
some of that because prime ministers can take some of that into account in their
appointment process. That is something that an elected process would not
necessarily do as well. Franco-Manitobans or Franco-Ontarians are appointed to
the Senate, but they may not be elected to the Senate.
When I teach Poli 101 Canadian Government, I talk about conventions. The best
examples I give are the conventions of cabinet formation and how you want to
represent all the different parts of Canada in that urban-rural divide, et
cetera. That way you do not have all cabinet ministers from downtown Toronto.
You have that mix.
That is the point about being careful about equality, certainly, but also any
other kind of strict formula. Some of the asymmetry and some of that difference
was there for a reason or is there for less obvious reasons.
The urban-rural example is another manifestation of some of those same
divisions. The urban-rural discussion is a small province-big province issue. At
the same time, having lived in downtown Toronto, I would not want Toronto not to
have some influence. Toronto is taking care of a great share of new immigrants
to the country in ways that Moncton and Charlottetown may not be. Those issues
are important as well.
Senator Comeau: With 101 members of Parliament in the elected House of
Commons, I think Ontario does have some influence.
Mr. Baier: I do not think it does. However, I would not want it to
Senator Murray: It is 103.
Senator Comeau: Professor Heard, you referred to the question of
independence, and I was intrigued by the study you did regarding the
independence of the Senate. I spent a good part of yesterday at committee
hearings where I did not sense that there was a huge amount of independence from
the opposition side on the accountability legislation, and maybe my assessment
right now is clouded by yesterday's hearings. However, there is much more
openness in the Senate to independent thinking than there is in the House of
Commons. I have had experience in both places.
However, with respect to the picture of appointments that would be for eight
years rather than up until age 75 suddenly eliminating the independence of the
so-called independent senators, I do not share your views of the independence of
the Senate as it is now, not to the degree you are suggesting.
Mr. Heard: It is good to return to this subject because it is a
relative degree of independence we are talking about. This is a partisan house.
There are whips. There are times when it is very polarized. However, there is
much more of an opportunity on an ongoing basis for individual members to vote
on occasion according to the way they think it should be. However, that
independence is part of the character. The amount of it is different from the
House of Commons. It is what gives the Senate something of its essential
character. We would want it to continue to be a partisan body. This is a
political institution. The kind of independence I am talking about is a relative
degree of political independence within the context of organized parties.
Senator Dawson: Professor Baier, maybe in 10 years you will come back
and you will be the one with the scars and we will talk about the battles.
Professor Resnick refers in English to the ``survivors of the constitutional
battles of the 1980s,'' whereas the reference in French is to the ``vétérans.''
I do not know if you survived the battles of the 1980s. We were not
necessarily on the same side. However, you certainly qualify as a survivor or
veteran, while Mr. Baier will be a veteran of the 2006 battle, or debate.
Mr. Chairman, I doubt whether we would find in the Conservative Party's
election platform a single reference to a plan to limit Senate terms to eight
years. With all due respect, I agree with Professor Resnick. If we intend to
reform the Senate, then we need to consider certain important prerequisites.
I think that if we want to continue discussing this matter and to move
forward, we would probably need to have a majority government, or at the very
least, the consent of a number of opposition parties, in order to proceed with
constitutional reform, even in areas under federal jurisdiction, which remains
doubtful. It is likely that this government can count on the proactive
participation of at least two or three parties in the House of Commons, or at
the very least, on a reasonable consensus.
What concerns me is the proposal to appoint senators for terms of eight
years. The danger, as Professor Resnick pointed out in his paper, is that 8 or
16 years down the road, a prime minister could ultimately end up with total
control over the appointments process, as we have seen happen in the past with
Mr. Trudeau, Mr. Mulroney and Mr. Chrétien.
How can we build some safeguards into this appointment process? What type of
provision should be included in the bill to guard against this kind of
Mr. Resnick: I fail to see how any kind of safeguard would be
possible, particularly as appointments would remain the Prime Minister's
prerogative. Unless we were to retain the current structure of an appointed
Senate and, as we now see with the appointment of Supreme Court judges where the
Canadian Bar Association and other organizations are consulted, we in fact
proceed to consult with a number of other agencies or individuals such as
members of the Order of Canada, provincial legislatures, and certain
well-respected national organizations, with a view to arriving at a consensus.
The resulting debate would be very interesting. However, we would truly need to
have a broad consultation process to ensure that Senate appointees were
prominent people in their respective fields and that, setting aside
partisanship, they were quality appointees.
This is not impossible. We see this a little here in Canada, but mostly in
the United Kingdom when peers are appointed to the House of Lords. Increasingly,
appointees are persons with a certain social standing. Nevertheless, the reality
is that appointments remain the prerogative of the Prime Minister and that there
will always be the possibility that truly partisan prime minister will, after
eight years, end up with a Senate in which not all, but perhaps 90 per cent, of
sitting members, share is exact same views. That is the real danger.
Senator Dawson: Mr. Baier, how do we try to put a cap on a process in
which we would not have this kind of abuse, other than the fact that it might
prove the absurdity of the system?
Mr. Baier: The obvious one is to make the appointments longer than the
average tenure of a prime minister. A 12- year appointment would likely do that,
as long as prime ministers do not last that long.
This has been done already in the sense that Mr. Chrétien was doing it to
some degree by appointing people who had less than eight years of available time
to serve. He got the chance to reappoint some of those spots in the Senate in
ways that do not happen when you appoint somebody at age 45 or 55. That is
something that a prime minister could already do if he wanted to.
That seems to be the only way, with reappointment, other than the steps yet
to come. I do not doubt Prime Minister Harper's sincerity in wanting to do those
things. I do not know that the provinces will go along with those changes.
Mr. Heard: The problem we have is one of political culture with the
Senate. Whether it is an eight-year appointment or appointment until age 75, we
have periods of huge imbalance in Senate representation, as there is today. It
was the same in the 1980s and the 1990s; it swung back and forth depending on
how long a party had been in power.
The partisan reality is that prime ministers want to redress the balance when
they find themselves under-represented. To a certain extent, one sympathizes
with that. It is better to have more of a balance within the Senate, but how
would it occur and what kind of balance is an open question.
In my view, it would only occur if the Prime Minister were to expand the
process of consultation, or to devolve recommendations to another body and
perhaps a list proposed from which the Prime Minister then chooses.
Senator Dawson: Honourable senators, there are positions open. If he
wanted to respect the Constitution, the Prime Minister could fill them and we
would have a better process in which to share. You were a very effective
opposition but the reality is that since you have already started to do a little
bit of balancing on the judicial nominations, as we will be seeing in the
newspapers over the next few days, maybe you could start doing it with the
Senator Comeau: Is he the attack dog of the day?
Senator Dawson: We are not supposed to be partisan; I am sorry.
Senator Watt: At times, the matters with which we deal are very
intense and complex.
I am from the North. It has not been easy for 23 years trying to do my job as
a senator. I would like to say that if this instrument does not exist, perhaps
the people I represent would not have an opportunity to be represented. You
mentioned that when the opportunity comes you have to take advantage of it. The
opportunity would not be here.
For that reason, I sincerely support the Senate. We have been doing a pretty
good job. As you know, from time to time we receive legislation from the House
of Commons that is not necessarily well-drafted or even good legislation. At
times we have to do a lot of cleanup in the Senate to ensure that what is about
to be passed is done correctly.
Having said that, I have some questions I would like to put to you. The House
of Commons has a tendency to pass laws that fit everybody, but at times it does
not fit my people. That is due to the fact that our economy is slightly
different from the southern economy. Our culture is not the same. The social
fabric is not the same. Therefore, the priorities are not the same.
On that account, I for one am looking for some way of increasing our
representation in the Senate and also the House of Commons, but at this point
the House of Commons is not the topic in regard to reform, even though I think
all senators understand if there is to be genuine reform, the House of Commons
also has to be reformed; otherwise, there will be some contradictory affairs
between the two.
As Aboriginal people, at times we are categorized as a minority within the
country. At times, we are also considered not to fit within that minority
concept. This is due to the fact that we were the first inhabitants of this
Knowing that, we have constitutional rights enshrined within the
Constitution. I do believe that is still unfinished business and must be
implemented. There has never been any willpower demonstrated by the government —
whatever party forms the government — or an interest to move forward. There is
no political will.
As Aboriginal people, we must fit into the system somehow. Otherwise, we will
be left out. We were the first inhabitants. Our forefathers did not foresee what
would transpire down the road when they were putting the instrument together.
They chose to decide that we did not exist. Maybe they realized that we existed,
but we did not fit in. For that reason, we need to find some way of establishing
a mechanism within the system to provide space for the Aboriginal people to have
a say and to be heard.
I want to examine the possibility of pushing current seats, not only within
the Senate, but also within the House of Commons. As I said earlier, today we
are only dealing with the Senate. How do you see that coming about? Am I
speaking with no basis?
Mr. Heard: In many ways, you are following on Senator Hubley's earlier
train of thought. This is about the participation and representation of the
diverse peoples of Canada. It has been a wonderful thing in my lifetime to see
how dramatically Canadian political culture has changed in terms of its
recognition of the role of First Nations people in our political process.
In trying to find more and better ways for the original habitants and
descendants to participate in our parliamentary process, I would be more
comfortable with finding ways in which the general process brings First Nations
people into it rather than reserved seats.
For example, if there were two or three senators from each of the
Territories, that would raise the senatorial floor for the members of Parliament
as well. That is not a large addition to either chamber, but it dramatically
increases the opportunities for First Nations people to be present in the
chamber. From my own point of view, it is a salutary message that one belongs in
Mr. Baier: The context of what the Austin-Murray motion does is
exactly that: It moves away from a notion of a Triple-E Senate. I think we have
heard it trashed enough times today. To consider the regions more in the context
of the 21st century, those are the concerns we want to deal with. That is the
It is also going to engage a process that will require a lot more talk. The
Austin-Murray motion cannot be done on its own. It will start the ball rolling
for those kinds of questions as well as the others that will arise.
Mr. Resnick: I agree with Professor Heard that in some ways this is
better addressed as a territorial question than as a reserved seats question.
New Zealand does that to a degree, but then we are getting into a whole lot of
other questions involving Aboriginal participation in the Canadian political
system as well as many other issues.
It could well be that if we have a more full-blooded Senate reform, one could
increase the current representation. If I understand correctly, there are three
current seats from the North. Given the importance the role of the North, as we
are told, will play in this dramatic new world of climate change on our
doorstep, far more significantly, there is the symbolic importance as well.
It could be that by increasing Senate representation from the North, as yet
another important and huge region of Canada, but of course very small in terms
of population, that this would give greater voice to Aboriginal people. That is
something I could support.
Senator Watt: I would like to address the point made of going by
territory rather than current or reserved seats. Considering the old NWT and
Nunavut, I would imagine that, as long as those people remain a majority within
the territory, something along the lines you suggest would be acceptable.
However, the minute they become a minority within their own backyard, which will
happen in a very short time, the representation is no longer there. This is one
of the reasons I talk about the current seats because I see there being a
long-term benefit, greater than what you are suggesting now.
Let me take this further. Look at northern Labrador, which is within the
province of Newfoundland. Look at Nunavik, which is within the province of
Quebec. How do you deal with that?
Mr. Heard: This is where the appointment process could and should be
used properly. The Prime Minister has a range of seats for those provinces. It
makes sense to use those seats to draw from indigenous populations. That is one
of the strengths that the Senate has had. It had greater representation of
non-territorial populations than the House of Commons because of deliberate
choices, and by raising and discussing this matter, hopefully it will become
something that political leaders will act on.
Senator Chaput: The Senate's mission is to represent the various
regions of Canada and to represent and protect Canada's minorities. The question
is this: how can the Senate better represent regions and minorities?
In terms of regional representation, in most instances, our focus is on
numbers, that is on increasing, or decreasing, the number of senators, in
keeping with population figures.
Even so, to my mind, we think like the majority. When we think in terms of
numbers, we overlook minorities. Why are they minorities? Because they lack the
My question is as follows: If you support the current raison d'être of the
Senate, which is to represent regions and minorities, could reform be achieved
some other way, in your opinion? Or, must we call into question and reconsider
the very reason for the Senate's existence?
Mr. Baier: We are the Vancouver caucus today, so we could talk about
the fact that 30 per cent of the Lower Mainland's first language at home may be
Chinese, and that representation in the Senate in that respect is woefully
inadequate. You just need more senators from B.C. to represent some of those
minorities in Canada. The Austin- Murray motion is not incompatible with
representing some of those minorities.
This point is striking for British Columbians, I think. If I am away for a
month and a half, when I go home, right away I notice a significant visible
minority population. However, if we look at the Senate roster, this fact is not
reflected, not even in the House of Commons.
Senator Chaput: What about official language communities? In your
view, should they also be represented?
Mr. Baier: It is the same situation in terms of looking at Manitoba.
The motion would give Manitoba a few more seats, which just provides more room
for that possibility.
Mr. Heard: I agree with everything he said.
The Chairman: On behalf of committee members, I wish to thank
Professors Heard, Baier and Resnick. We appreciate very much your appearance
before us this afternoon and the time you have taken to prepare your
presentations and to answer our questions. Your testimony will be of great
assistance to us in our deliberations. We will benefit in the sense that Senator
Angus and I are already working on a report. Our chief report writer, Dr. Jack
Stilborn, is already at work because we are attempting to complete the report in
a shortened time frame.
Thank you again. In the end, you will have made a great contribution to our
Senators, we now welcome the Honourable Gary Mar, Minister of International
and Intergovernmental Relations for the Government of Alberta. It is a
particular pleasure to welcome Minister Mar, who represents a constituency in my
home city of Calgary. I have known Mr. Mar for a long time and have great
respect for him. He comes from the heart of Senate reform country.
With those words of welcome, Minister Mar, please proceed.
Hon. Gary Mar, Minister of International and Intergovernmental Relations,
Government of Alberta: Thank you, Mr. Chairman and committee members. On
behalf of the Government of Alberta, I am pleased to have this historic
opportunity to appear before the committee to outline Alberta's position on
Senate reform. Alberta's position is very clear and for over a quarter of
century we have strongly supported reform of the Senate. Over those years, there
have been many committees, reports and papers devoted to the subject. Virtually
all of them have come to the same conclusion that Canada's Senate needs to be
Albertans want to see a Triple-E Senate; that is, an elected Senate with
equal provincial representation and effective powers to fulfil its historical
mandate of representing provincial interests. This position has its roots in the
recommendation of the Alberta Select Special Committee on Senate Reform. In
1985, all parties of the Legislative Assembly of the Province of Alberta
approved the committee's recommendations. On two other occasions, in 1987 and in
2002, the legislative assembly endorsed the committee's recommendations.
Albertans' desire and support for comprehensive Senate reform remains strong
In June 1989, Alberta took a significant step in pushing for Senate reform
when the Alberta government introduced the Senatorial Selection Act. This act
enables our province to conduct Senate nominee elections so that Albertans can
democratically choose their representatives in the Senate. Thus far, three
Senate nominee elections have been held, in 1989, 1998 and, most recently, 2004.
Under the act, province-wide candidates, whether independent or of registered
political provincial parties, are selected by Albertans to become nominees. The
list of elected nominees is provided to the Prime Minister with the expectation
that the nominees will be appointed to fill Senate vacancies arising in Alberta.
In 1990, Alberta's first elected Senate nominee, Stan Waters, was appointed
to the Senate by the Conservative federal government of former Prime Minister
Brian Mulroney. Subsequent Liberal federal governments have not appointed these
Senate nominees. Currently, Alberta has four Senate nominees, all elected in an
election on November 22, 2004. Despite the fact that three Senate vacancies from
Alberta existed after their election, none of them has been appointed to the
Senate. Instead, the vacancies were filled with unelected appointees on March
Alberta believes that reform of the Canadian Senate is essential and
continues to support comprehensive constitutional reform to bring about a
Triple-E Senate that embodies the following three key principles.
The first principle is that representation to the Senate is equal from each
province. What is some times forgotten, or perhaps not easily understood, is
that in a federal parliamentary system the representative functions of the
Senate and the House of Commons are intended to be very different. The House of
Commons, based on representation by population, represents the democratic
principle. The Senate, based on representation from each part of the country, is
designed to represent the federal principle. Together, the two chambers reflect
the national will. The rationale behind this structure is to ensure an
appropriate expression of democracy and federalism.
Some national jurisdictions in the federation that have large populations
will hold a majority of sway in the lower chamber and their interests will be
reflected accordingly. At the same time, having a strong upper house with equal
representation from each jurisdiction, ensures that the interests of smaller
ones are not ignored or eclipsed by those of the overwhelming majority. This
upper house is an essential element in a properly operating federation,
particularly one as large as Canada, where there is a great diversity in
priorities, needs, goals and interests between the provinces.
As noted scholar K.C. Wheare wrote:
States may be reluctant to enter a federal union unless they are guaranteed
some safeguard in one house of the legislature against their being swamped by
the more populace members of the union... Equal representation in the Senate
gives some sort of security to the smaller states that the powers which have
been handed over exclusively to the federal government will not be exercised
as a general rule in the interests of a few states. Unless there is this
feeling of security and unless there are the checks and obstructions which
such a second chamber provides, it may be impossible to initiate a federation
or to work it successfully.
The majority of federations in the world have upper chambers that provide
equal representation for each of their sub-national jurisdictions. For example,
in Australia, each state is represented by six senators, regardless of its
population. The upper house in Mexico is comprised of three senators from each
At the time of Confederation, Sir John A. Macdonald acknowledged the need for
equality in Canada's Senate. He said:
In order to protect local interests and prevent sectional jealousies, it
was found requisite that the three great divisions into which British North
America is separated, should be represented in the Upper House of the
Principle of Equality.
Though the concept of equality was adopted, it was unfortunately applied
imperfectly — an equal number of senators were given to each region of Canada
rather than to each province. This may well have been defensible in 1867 on the
basis that each region would have had similar interests requiring protection and
In 2006, however, this distribution does not reflect the modern character of
Canada. Each province has evolved in its own distinct way with unique
priorities, interests, concerns and goals. Accordingly, each province should
have its own representation in the Senate.
This idea is hardly new. As early as 1908, Prime Minister Sir Wilfrid Laurier
was calling for such a distribution. He said:
What I would insist on is that each province should be represented by an
equal number of Senators, that each province should stand in the Senate on the
same footing, and that each province whether it be big or small should have a
voice in the legislation, not according to the numerical strength of its
population but according to its provincial entity.
If the Senate is to reflect the true national will, then the principle of
equality that currently exists in the Senate must be extended from the archaic
notion of regions to the modern reality of provinces.
Alberta's second key principle is that members of the Senate of Canada are
elected. It is obvious that a basic principle of democracy is that a government
is accountable to its citizens. Citizens should have the opportunity to select
their representatives and should have the ability to hold their representatives
to account through free, regular elections. Our current Senate does not reflect
these basic democratic ideals.
This lack of a democratic foundation impedes the Senate's ability to fully
execute its constitutional role. There is little doubt in my mind that the
senators in our upper chamber today take their role to provide sober second
thought seriously, but the nature of modern expectations is such that Canadians
view it as inappropriate for an unelected body to block, amend or pass judgment
on the objectives of the elected House of Commons. This puts our well-meaning
senators in what I would perceive to be a very frustrating position.
Clearly, the Senate's present lack of democratic foundation limits the
ability of the Senate to fulfill its original representative function under our
Constitution. To Albertans, this all points to the need for senators to be
directly elected by citizens.
Albertans demand the right and expect the opportunity to elect their
representatives, including their senators. Alberta has done its part to address
this by holding Senate nominee elections that allow Albertans to select those
that they would like to see serve as their senators. Alberta believes that the
rest of the country should take similar steps toward ensuring that senators are
elected by residents of the province they represent.
Alberta also believes that Senate elections should be held under provincial
electoral processes, with candidates running as independents or as members of
provincially registered political parties. This is essential to ensure that the
Senate reflects its intended purpose as a forum for representing provincial
Two key issues arise if Senate elections are held under federal election
processes. First, non-independent candidates would need to be from and subject
to federally registered political parties thereby undermining their ability to
represent the interests of their provinces; and, second, the makeup of the
Senate would risk becoming a mere echo of the House of Commons rather than an
independently elected body with a separate and different composition and
perspective. In my view, this would run contrary to the spirit and purpose of
Presently, senators hold their appointments until the age of 75. To many,
this is tantamount to an appointment for life without ever being required to
seek a renewed mandate or being held accountable by the public. Under the
current system, a senator can serve a term as long as 45 years without ever
being evaluated by the citizens that he or she may represent. Just as lawmakers
in provincial legislatures and the House of Commons must submit to an election
at regular intervals, so too should the lawmakers in Canada's upper house.
Alberta believes that senators should be elected for a fixed and certain term of
Finally, Alberta's third key principle for Senate reform is that the Senate
must be an effective body. If the Senate is to fulfil its intended purpose, then
it must possess and be able to exercise effective legislative powers. As
discussed earlier, the Senate was designed to represent the federal character of
Canada and to act as a chamber of sober second thought.
It is important to recognize, however, that the Senate's effectiveness in
fulfilling this role is largely linked to its legitimacy in the eyes of the
Canadian public. Constitutionally, there is no doubt that the Senate currently
has considerable authority to play a role in the process of lawmaking. It can
block or veto a bill passed by the House of Commons. In practice, however, the
Senate virtually never fails to ratify legislation sent to it by the House of
Senators, I think, recognize that Canadians would not support an unelected
chamber blocking the will of an elected house. An elected Senate would have the
legitimacy to play an effective and meaningful role in the parliamentary
In conclusion, consistent with Alberta's long-standing position on Senate
reform, Alberta takes the following positions on matters being considered by
this Special Senate Committee on Senate Reform.
Alberta can support the goal of Bill S-4 to limit the terms of senators to
only eight years.
As discussed earlier, Alberta believes that senators, like members of
Parliament, should have terms of fixed duration to ensure that they are
accountable to Canadians.
However, Alberta believes that Bill S-4 should be regarded only as a step
toward greater reform of the way senators are selected.
Senators who are unilaterally appointed by the Prime Minister every eight
years are no more democratic than senators who are appointed to the age of 75.
Imposing a shorter term, while welcome, does not address the Senate's
fundamentally undemocratic composition and structure.
Alberta does not support the motion introduced by Senator Murray and Senator
Austin. Although the motion would increase Alberta's representation in the
Senate, in my view it would continue to reinforce the inequality of the Senate's
Alberta believes that, as the chamber intended to represent the interests of
the provinces, each province should be equally represented in the Senate.
Canada is not a federation of regions; it is a federation of provinces.
Furthermore, the archaic distinction of Senate's divisions along arbitrary
regional lines no longer reflects the realities of our modern country.
Each province in our federation has evolved and grown in its own unique way,
and each has its own priorities, goals, interests and challenges. Accordingly
each province needs equal representation in the Senate.
Under the Murray-Austin motion, regional divisions would be maintained and
provinces that are more populous would continue to dominate the Senate, leaving
it as a mere echo of the House of Commons.
Honourable senators, thank you for this opportunity to outline Alberta's
position on Senate reform. As I mentioned, Alberta's position has remained
virtually unchanged for the past quarter century. Albertans strongly support
Senate reform so that our upper chamber is equal, elected and effective.
Senator Fraser: Mr. Minister, welcome. As I listened and as I looked
at your brief, I do not think you addressed one of the questions that has come
up repeatedly in our hearings, which is the matter of whether the Senate terms
under Bill S-4 should be renewable. Do you have views on issue?
Mr. Mar: Senate terms should be renewable.
Senator Fraser: Even under a system of appointment?
Mr. Mar: Obviously, our first position is that senators ought to be
elected, but they could be renewable if not elected.
Senator Fraser: It has always seemed to me that each part of the
Triple-E formula was bound up with each other part, from the point of view of
those who support it, and that it might be difficult to achieve piecemeal,
particularly if one started with an elected chamber given the current
distribution of seats once the senators were all elected. Might it be even more
difficult to achieve equality given that they would all then have political
legitimacy under the old system?
Do you believe that it would be desirable and/or possible to go at a Triple-E
Senate stage by stage, or do you think that it really would need to be
considered together? I have not even asked you to address the question of the
powers of that Senate, but of course that comes under the 30, which is
Mr. Mar: Right. Alberta's position is consistent with that of the
Prime Minister. I believe that, before this committee, he talked about moving
things in stages. Our position would be that you can move things in stages. This
is a perspective that we have placed before the federal government for at least
the last eight to 10 years. Although it would be better to move all at once on
all three elements of elected, effective and equal, we think it can be achieved
in stages as well. We would like to see at least a start moving in that
Senator Fraser: Have you been in touch with your counterparts in other
provincial governments to see whether there is any appetite in the country for
launching broader constitutional talks, shall we say?
Mr. Mar: We have been in contact with other provinces. I do not
purport to speak on their behalf. However, I can say that there is some appetite
among some provinces. Those that would be most interested would be those that
would actually appear before this committee. I believe that the Province of
Quebec will have much to say on the subject. The Province of Ontario will say
much about the subject. I will not purport to try to explain what I understand
their respective positions to be. However, this is an issue that is ready for
debate among Canadians throughout the country. This is my sense.
Senator Angus: Minister, thank you for coming, and welcome to the
appointed, effective and unequal Senate. It is good to have you here. I found it
fascinating to hear the ``pure laine'' version of a Triple-E Senate put to us as
frankly and as candidly as you did. It helps us to understand a term that gets
bandied about in the media and other places.
First, to deal with the specific points of Bill S-4, do I understand that
Alberta would agree that the bill as drawn is within the legislative competence
of the Parliament of Canada?
Mr. Mar: I do not know if I am competent here to provide a legal
opinion on that subject matter. However, we have asked our Department of Justice
to prepare an opinion for us. The opinion that I conveyed to you is that it is
within the competency of the legislature.
Senator Angus: Under section 44 of the Constitution Act, 1982?
Mr. Mar: Yes, senator.
Senator Angus: I have never been a minister either at the federal or
provincial level dealing with intergovernmental affairs, but the crux of our
system in Canada must be to try to all get along and to deal with these tricky
issues. Given, as you say, the longstanding and firm view of you folks from the
province of Alberta on the Triple-E Senate as you described and characterized
it, and knowing what you do as the incumbent Minister of International and
Intergovernmental Affairs, do you know or do you have a sense of what your
fellow ministers from the other nine provinces would have to say on the issue?
Mr. Mar: Yes, senator, I have some sense of it. Again, I do not
purport to speak on their behalves.
There is a wide variance of views. If I might draw an analogy, it is not
unlike the equalization formula. Everybody understands that it needs to be
fixed; we do not necessarily have an agreement on how it should be fixed. The
Senate has created similar responses on behalf of provinces. There is a wide
recognition that the Senate should be reformed. There is perhaps a much wider
variance as to how it should be reformed.
Let me put this in an even broader context than simply the Canadian one. You
would be hard pressed to find a successful federal state anywhere else in the
world that did not have an upper chamber that was more closely like a Triple-E
Senate than what we currently have today. Efforts have been made in other
jurisdictions to reform their upper chambers. Even the House of Lords in Britain
is undergoing a change. In that broader context, I would suggest that, as we
have talked about Senate reform over many years in this country, when all was
said and done, more was said than done.
Senator Angus: I was depressed to hear a witness the other day —
actually, it was the Prime Minister of Canada — when asked his view about
getting a comprehensive reform along the lines that your province would
advocate, to reply that the only consensus that could be achieved amongst the
provinces would be one for abolition. That really distressed me. Would you share
that view, knowing what you know at the present time?
Mr. Mar: I am aware of one province that would be in favour of
abolition. However, again, looking at it in the context throughout the world, I
cannot think of any federal state anywhere else in the world that does not have
an upper chamber that represents the federal principle.
Senator Angus: We get to the stage where there seems to be a fairly
large belief that if we go the incremental route, we have to get to some more
fundamental changes than the one represented by Bill S-4 and, indeed, by
Senators Austin and Murray in terms of their reconfiguring, if you will, or
rejigging the representation. Given your position as being really quite extreme
and not shared by a lot of big provinces, I wonder if there is any wiggle room
in the Alberta position. If we got to the stage of comprehensive reform, would
there be some give? For example, let us take the equal aspect of the Triple-E
Senate. That would be equal number of senators from each province. It has been
written and said and we have been advised by experts that that would totally
change the character of this upper chamber in Canada and make it more like some
other countries that have been named. We in Canada have our unique way. There
was a reason for doing it the way it was done at the outset. Would you folks be
willing to compromise? Would you be optimistic that we could reach a consensus
that might not be exactly what you have just outlined as your position that
would not be abolition?
Mr. Mar: The answer is yes. The Province of Alberta would be willing
to compromise, but we would have to see the direction in which things are going
in order to be able to come to that firm conclusion. I would remind honourable
senators that on previous occasions, when attempts were made to reform the
Senate, we came close, and compromise was made by all provinces. This situation,
in the right circumstances, may be the case again at some point in the future.
Senator Murray: It is nice to see you here, minister. Welcome.
You took a very strong position today against national senatorial elections
and in favour of provincial electoral processes. You gave the reasons, which I
think everybody understands and I will not repeat here. When the Prime Minister
was here the other day, he took an equally strong position against provincial
electoral processes and in favour of a national process. I do not have his
testimony here in front of me, but trust me that is what he said — a national
process for electing senators, rather than a province-by-province process.
How serious a matter is this for you? Surely, if you had a Triple-E Senate on
offer from the Government of Canada and the other provinces, you would not
quibble about how the elections were going to be held, would you?
Mr. Mar: I go back to the reasons that I indicated at the outset as to
why a provincial election process would be a superior one and that is, again,
because we believe that the purpose of the Senate is to represent provincial
interests and not simply be an echo of the House of Commons. That is the reason
we are of the view that a provincial election process would be superior to a
There may be pragmatic reasons outlined by the Prime Minister in his
submission as to why a national election process would be superior. However,
from the perspective of what the purpose of the Senate is to be, we would stand
by our view that a provincial election process would be better.
Senator Murray: I suspect there are both political, in the large
sense, and constitutional reasons why — especially with the kind of consultative
election he is talking about — he would prefer to go for a national process.
In answer to Senator Fraser earlier as to whether a Triple-E Senate could be
brought about in an incremental fashion, you said you agree with the Prime
Minister's approach, which is to proceed by stages. Is it your understanding
that the stage that is before us now is a stage toward a Triple-E Senate?
Mr. Mar: I have no further knowledge of what the Prime Minister's or
the government's intentions are in this regard.
We can say there are parts of Bill S-4 that we agree with. To the extent that
it moves toward, even in an incremental way, the gold standard by which we
believe there should be a Triple-E Senate, then we support that.
Senator Murray: The Triple-E was the definitive position of the old
Reform Party, to which Mr. Harper and many of his present colleagues were
committed. Is it your impression that they have abandoned that commitment or
Mr. Mar: I read the same newspapers as you, senator. I have no inside
Senator Murray: What is Alberta's position as to the amending formula
that will be necessary to bring about a Triple-E Senate? Is it a seven-50 issue
or something more than that?
Mr. Mar: I have not addressed my mind to that, to be honest, senator —
issues like that, issues that Senator Fraser raised with respect to the powers
of the Senate. There are still large issues that can be the subject matter of
ongoing discussion as we move through this process. We are not firmly committed
to one amending formula or another.
Senator Murray: About abolition, have you ever considered as a
political proposition that it might be easier to design the Senate that you want
if you abolished the present Senate and started from the ground up?
Mr. Mar: I never contemplated that possibility.
Senator Comeau: Thank you, minister, for coming in today. We
appreciate it. I think you are giving us the first provincial view of the
current package we are looking at in this committee.
As you know, our mandate at this point is to look at the subject matter of
Bill S-4, which is the question of tenure. The Murray-Austin motion, which is to
look at different representation for the Western provinces, is also before us.
I am interested, even though it is not part of the full package that we are
looking at, in your proposal for the Triple- E Senate. Have you ever proposed
the numbers in the Triple-E — five senators, two, 15? Has there been had a
number brought forward?
Mr. Mar: There have been a number of different iterations that have
been suggested. The one that seems to have the most support in our province, and
in some of the provinces that we have been in discussions with, is perhaps six
Senator Comeau: It makes a lot of sense. It would be a slightly
smaller Senate than it is now.
You referred to the new Senate as representing the federal principle. I am
not sure if I am familiar with that. I am a novice to some of these new
Are we referring here to the federal principle that the house would become
strictly a chamber that represents provincial interests rather than what it now
purports to be, which is a chamber of sober second thought, a chamber of
representing the minorities, a chamber that looks at federal issues through the
prism of federal and regional rather than just provincial issues?
Mr. Mar: The federal principle is that our federation is made up of
constituent provinces, not regions, and that each of those provinces should be
equally represented so that one province would not be overwhelmed by the
majority held in the House of Commons by more populous provinces of Canada.
Senator Fraser and I were talking about the origins of why Alberta had become
such a strong advocate of a Triple-E Senate some 25 years ago. I believe that
the origin of that strong sentiment was because of the National Energy Program.
That would have been an example of an issue where, had it gone to a Triple-E
Senate as a chamber of sober second thought the end result may have been
We recognize that in places like Australia, where there are elected senators
— six for each of the states of Australia — that there are sometimes issues with
respect to the upper chamber overturning the decisions. They have actually
caused governments to fail in that country. There are ways of being able to deal
with those types of issues so that you do not end up with that end result, but
the federal principle is the one that we believe was contemplated at the outset,
when our Constitution was first struck.
Senator Comeau: You refer in your presentation to the Senate elections
as coming under provincial electoral processes, with candidates running as
independents or members of provincially registered political parties. With that
in mind, one of the two key issues that you raise is that under the federal
process, non-independent candidates would be subject to federally registered
political parties, thereby undermining their ability to represent the interests
of their provinces.
I would assume that the next project that the Prime Minister will come up
with would be a consultative process, rather than a full, constitutionally
mandated process after constitutional amendment. My guess, therefore, is that
the reason for going with a federal consultative elections process is because it
is consultative. Is that your reading of it as well? Is what you are referring
to here a post-constitutional amendment? I am not sure if I am explaining it
Mr. Mar: I am not sure I understand you, senator.
Senator Comeau: You are suggesting that once all is said and done,
that the elections be done under provincial jurisdictions, but what you are
referring to here is once a constitutional process has been agreed to; is that
Mr. Mar: Yes, that is correct.
Senator Comeau: If the Prime Minister were to come up with a process
in a couple of months whereby it would be done under federal law, would you not
view it quite differently?
Mr. Mar: Yes, we would.
Senator Comeau: Finally, you mentioned a few minutes ago that in
Australia you have seen processes whereby the Senate has blocked certain bills.
You raised a good point about the National Energy Program of the 1980s. It would
certainly not have passed muster had it been a Triple-E Senate. I am sure it
would have been stopped on the spot.
However, with an elected Senate along the lines of the Triple-E Senate, would
it create a problem as to what we view as a confidence system of government in
the House of Commons?
Mr. Mar: One way to avoid that is that matters that would go before
the Senate could be viewed as being not confidence issues. That way you would
avoid that kind of circumstance that has arisen in Australia, where, I believe,
that on the basis of a budget the government was thrown into a non-confidence
situation because the upper house rejected the budget tabled in the House of
Senator Harb: I am interested in the idea of effectiveness. Obviously,
if you wanted to give the Senate the power that it deserves, then you would have
to give it a number of things, one of which is the ability to block legislation.
Another would be to vote on confidence motions against the government. If it is
a money bill now in the House of Commons, if the House of Commons votes against
the government, the government will fall.
Have you given any thought to an event where, for example, the House of
Commons would vote for the government on a budgetary item, it comes to an
elected Senate and the Senate would vote against it? What would happen? Would
the government fall or would it stall?
Mr. Mar: You could have a veto that would have a suspending effect,
where the matter would go back to the House of Commons for reconsideration after
a period of whatever the suspense period is, 30 or 45 days. It would not go as a
confidence motion to the upper chamber, but the upper chamber could exercise its
ability to suspend the motion in the upper chamber.
Senator Harb: In your theory, supremacy would remain the House of
Commons; is that correct?
Mr. Mar: That is correct.
Senator Harb: That power that we are giving to this elected Senate
would have to come from somewhere. If we want to make it effective, give it the
ability to not only bring down legislation, vote on confidence motions, but also
to be effective, so you have to give it the power. In your view, should that
power come from the provinces, therefore taking away power from the premiers and
the legislators at the provincial level? Should it come from the House of
Commons? If you want to give power to someone, you have to take it from
somewhere else. Which one of the two should it come from?
Mr. Mar: In the constating legislation that creates the Senate to
begin with, there is already a great deal of power that is within that
constating legislation today. The Senate has the power to initiate bills, other
than money bills. It has the power to veto and so on, so it is not a question of
creating necessarily more powers for the Senate but simply breathing life into
the powers that the Senate already possesses.
Senator Harb: In the U.S. where they have a system which is quite
different from ours, obviously, when you want to look at the power structure,
there is, in a sense, a diminishing role of the governors as compared to that of
the senator from that particular state. People feel that why go to the governor
and to the state legislator when I can go right to the senator in order to bring
about an issue or a change.
How do you think the provinces would react in Canada if a situation like this
were to develop?
Mr. Mar: I am not an expert on matters of U.S. or Canadian
constitutional law, I might add, but I do know that there is a complete reversal
of powers with respect to balance of powers in Canada versus the United States.
In Canada, expressed as a percentage of overall public spending, provinces
spend roughly 63 per cent of all the money spent in Canada. The federal
government is spending the balance. In the United States, it is the exact
opposite. Roughly two thirds of spending in the United States is done by the
federal government and only one third by the states.
The result is that whenever there is a vacuum in a particular area of
jurisdiction and whenever there is an issue of paramountcy, it is almost always
in the United States resolved in favour of the federal government versus the
state government. In Canada, it tends to be much more balanced in favour of
The constitutional backgrounds of both countries are quite difference in
terms of origin, so I do not think that you will have the same kind of struggle
in Canada that there is sometimes in the United States with respect to states'
powers versus federal powers.
Senator Tkachuk: I know that in the last election campaign whenever
the Prime Minister talked about democratic reform, which was the first of the
five policy planks, and he talked about Senate reform and accountability, both
issues which are before the Senate today, that usually brought the biggest
applause lines. There was a tremendous amount of discussion during the election
on reform of the Senate, despite what some of the other witnesses may have said
There was some discussion about the Triple-E Senate and it being a reform
initiated federally, but in Charlottetown there was a tremendous amount of
consensus for electing six-members per province. As Senator Murray reminded me,
there was an override provision, but nonetheless there was a lot of consensus
amongst all the political parties for reform of the Senate, including the
Liberal Party, the Conservative Party at the time and the Liberal premiers
throughout the provinces, and the only people who opposed it were the Reform
Party, if I remember correctly.
Senator Murray: That was Mr. Manning on Mr. Harper's advice.
Senator Tkachuk: Nonetheless, we do have a lot of common ground as we
go forward on the issue of Senate reform.
When you talk about provincial elections, how would a common standard be
arrived at for each region or each province in your particular formula? In other
words, if a province chose to recommend senators from the legislature, would
that fulfil your particular view of how this would operate?
Mr. Mar: No. What we would contemplate would be a province-wide
election, province by province. Certainly, there would be room to establish some
consistency in the qualifications of individuals who would run in any given
province across the country.
Therefore, there can be some standardization of the process. It is not
contemplated that it would simply be satisfied by the appointment of someone
from the legislative assembly, although there is one province that may make such
a proposal. I do not again wish to speak on its behalf, but there have been some
discussions in this regard raised by others, but that would not be Alberta's
Senator Tkachuk: If we follow your reasoning that the federation is a
federation of provinces, and you wish that each province would run its own
elections, surely it follows that each province would decide how its elections
are to be run. Therefore, if a province said, ``We agree with the principle that
it represents the provinces,'' but the legislature of the Province of Quebec, if
we may use that unnamed province, said, ``No, we wish to select our senators
with a legislative vote,'' would that not make sense?
Mr. Mar: I suppose it is something that could be the subject matter of
discussion among and between provinces in collaboration with the federal
government, as we try to move the overall proposal for, again, what we believe
is the end goal, which is a Triple-E Senate. Alberta would certainly be prepared
to discuss that with other provinces and the federal government with respect to
what will satisfy all provinces in terms of a provincial election.
Senator Tkachuk: Do you think that senators should be chosen on a
first-past-the-post system, or should there be some other electoral method of
selecting senators? For example, if there were six senators that were to be
elected in Alberta, would they be divided by the number of votes that were
garnered for each political party or each senator, or would there be electoral
districts? Let us say that you had ten in the province of Alberta?
Mr. Mar: The manner in which it was conducted under our Senatorial
Selection Act was simply taking the top four candidates to fill four positions,
so that is the manner in which we conducted it in Alberta.
There are been other proposals with regard to some form of representation to
ensure that Aboriginal peoples, women, other minority groups and perhaps the
disabled in Canada are represented. We do not take a position on that except to
say that it is all open for discussion as we proceed.
Senator Tkachuk: You would like to see a Triple-E Senate, but in the
end you are open to differences of opinion and a consensus of opinion from
across the country.
Mr. Mar: We would seek a strong consensus. As you correctly pointed
out, there is a precedent for us having come close before. I referred to that in
my response to Senator Angus. We hope that down the road those circumstances
will occur again where provinces and premiers will come to a crossroads where
they might be able to compromise on a number of different points, because it is
more than just the Triple-E Senate; there are many issues that need compromise.
Alberta certainly is open to the discussion.
Senator Hubley: My question is along the same lines in that presently
the Senate does have the ability to, and does, represent all regions in Canada,
especially minorities, First Nations, et cetera. The Prime Minister now has the
option of selecting individuals to sit in the Senate who have skills and
expertise in areas that he might see as necessary for him to balance our
parliamentary system. With the Triple-E Senate, will he have a somewhat
diminished or limited option to do this?
Under a provincially-elected Senate, do you see an avenue that could be used
to ensure that both the regions and minorities would have an equal opportunity
to be considered as nominees for the Senate?
Mr. Mar: We have not seen a formula to suggest there would ever be
agreement on what the composition of the Senate should be in terms of
representation of the various groups. Certainly, the Prime Minister would be
giving up his prerogative to fill what he views as being political deficits in
terms of appointments to the Senate.
Senator Hubley: Would the Government of Alberta designate seats for,
let us say, regions and minorities that you would identify as a provincial body?
Mr. Mar: I have not addressed my mind to that yet.
Senator Watt: If I understand your presentation, the elected senators
from Alberta will come to Ottawa.
Mr. Mar: Correct.
Senator Watt: They will become senators.
Mr. Mar: Correct.
Senator Watt: I am thinking in terms of the daily activities of
individual senators, how we conduct ourselves in the Senate in conjunction with
our relations to the other place, the House of Commons. If new senators are
elected by the province, they are in a sense appointed by the provincial
Mr. Mar: No, they are elected by the people of the province of
Alberta. They are not appointed by the Government of Alberta.
Senator Watt: Did you not say that the Prime Minister would have to
relinquish some of his responsibilities if that were to go through?
Mr. Mar: Correct. The Prime Minister would no longer have the ability
to appoint members to the Senate. Instead, they would be elected by the people
of the province of Alberta to serve as Alberta senators in the upper chamber in
Senator Watt: In a sense, the Senate, as an institution, would become
a football field between the federal and provincial governments. If they have a
disagreement on some point, they would be able to deal with it in the upper
house. Is that not what you are trying to do, to bring provincial concerns into
the central system in order to have the ability to outdo the federal
Mr. Mar: No. It is a support of the federal principle being that
provincial interests should be represented in the upper chamber in a federal
system of a parliamentary democracy. This is consistent with the model of other
federal parliaments throughout the world.
Senator Watt: How would it work? Let us assume we have a Conservative
provincial government and a Liberal federal government; what happens to the
partisan issue? Would that disappear within the Senate? We would no longer be
looked at as partisan.
Mr. Mar: I am not sure I understand your question, senator.
Senator Watt: You are talking about electing new senators from the
province, elected by the people, but in a sense those are the representatives of
your provincial government.
Mr. Mar: They are not representatives of our provincial government but
of our province's population.
Senator Watt: They are elected on the premise of what the provincial
government would like to have them do when they become a senator.
Mr. Mar: No, it is on the basis of what the people who elect them want
them to do.
Senator Chaput: Mr. Minister, we agree that the Senate was designed to
represent the federal character of Canada. I would like to add that in Canada
there are two official languages, English and French, and they have equal status
and equal rights. If we both agree on those two principles, would the Alberta
government be open to considering the establishment of a process to allow
official language minorities to elect their own senators?
Mr. Mar: We have not contemplated that at all.
Senator Chaput: Have you never even thought of it?
Mr. Mar: No.
The Chairman: Most of the matters that I thought we would like to hear
from you on have been covered, Mr. Minister, but perhaps I could probe into an
issue raised by Senator Tkachuk; that is, the method of election, dealing with
that in isolation, assuming we get to that point, and according to the Prime
Minister we will. The Alberta elections to select senators began in 1989, the
first in conjunction with municipal elections and the most recent in conjunction
with a provincial election. I have forgotten what the rules have been in terms
of the two types of election on party affiliation. I think the first was federal
and the others provincial. In any event, they were held simply on the basis of a
vote for either one or two of the candidates standing for election.
My question pertains to the Government of Alberta's consideration of
proportional representation as a method of Senate election, the most common
model put forward being the single transferable vote, provided it is in the
style of the Australian Senate, open and not strictly on a party list basis.
Is this something that the Government of Alberta has considered? The real
question is this: Are you in a position to tell us if that would be supported?
Mr. Mar: I do not have a response for you that I can say is on behalf
of the provincial government.
The Chairman: It is more complex than the system used in the selection
processes to which I have referred. That may have been a consideration, I do not
Senator Fraser: Minister Mar, my interest was peaked even further when
you recalled our discussion just before this meeting about the national energy
policy. I was not here then, but I am not sure that I would be as confident as
you are that under a Triple-E Senate the national energy policy would not have
been adopted, bearing in mind that the consuming provinces would vastly
outnumber the oil-producing provinces in such a Senate.
That led me to a more general question. It is famously true that when people
come to Ottawa from different regions of the country, their understanding of the
country changes. Where you stand depends on where you sit. That is only true in
a narrow partisan sense, but it is also true in terms of what you learn about
the practical political realities in regions other than your own.
I have to assume that the same would be true for elected senators; that when
they came to Ottawa, their perspective would broaden and sometimes shift, from
all provinces. Every one of those elected senators would have been elected by
more people than vote for any provincial or House of Commons politician.
Let us say that a senator from Alberta did not agree with you. Would not that
senator be able to claim a greater legitimacy in representing the people of
Alberta than you, a representative of the provincial government? Does that not
Mr. Mar: No.
Senator Fraser: Do you agree it would happen or could very well
Mr. Mar: Certainly, it would happen that senators being elected in the
province of Alberta — let us assume the number is six — would have a greater
number of electors than would any member of Parliament or any member of the
provincial legislature of any province, including Alberta.
However, their role would be to represent that constituency of Albertans in
Ottawa in the upper chamber. Right now, it is the case that my member of
Parliament already represents more people and has more electors than I
represent. Her role is in Ottawa dealing with the House of Commons.
That she happens to have more electors than I do does not bother me in the
least; nor would a senator who would probably have more than the two of us put
together because they are representing the interests of a group of electors in a
different chamber and in a different venue.
Our responsibility is to work together as best we can to resolve issues that
may arise between the provincial and the federal government. I can tell you that
I do work well with my member of Parliament. The fact she has a much larger
number of electors does not give her, in my opinion, any more legitimacy than my
role as a member of the legislative assembly for the constituency of Calgary
Senator Tardif: As an Albertan and a member of the Senate — although
an appointed member — I am pleased to have you here today, minister, to
represent the views of Alberta, our province.
Earlier today, Mr. Gibbins, President and CEO of the Canada West Foundation,
presented his personal opinion. He expressed himself by saying that equal
representation is not in the West's best interests. According to him, the
Triple-E model looks back rather than forward. I was wondering if you could
comment on that.
Mr. Mar: It would be hard for me to comment without understanding the
background of Professor Gibbins' comments. I have read much of his writings in
the past; however, I am not sure what he is proposing in terms of what would be
better than equal representation. It is difficult for me to comment on his
perspective not knowing what it is he is proposing as an alternative.
Senator Tardif: I believe it was in response to the growth in
population, in particular with Alberta and British Columbia, and having the
representation according to increased numbers of population. To keep it equal
would continue to keep the West at its present disadvantage.
Mr. Mar: I am not sure if he would propose that the number of senators
a province should have should be in accordance with their population. That, in
the submission of the Province of Alberta, is the purpose of having a House of
Commons and a lower house, to reflect the population by representation.
The upper chamber has a different role. Therefore, if Professor Gibbins is
suggesting that the number of senators should be based on the number of people
in your province, I disagree with that. That is the role of the lower chamber
and not the upper chamber.
Senator Murray: First, on the point raised earlier by Senator Chaput,
the Charlottetown Agreement, about which you have had some favourable things to
say, did not contain any provision for linguistic minorities electing their own
senators. However, it did contain, as I recall, a provision for a double
majority on matters affecting linguistic minorities, language and culture.
Talking of Charlottetown leads me to another matter. I respect the reasons
why you oppose the resolution that Senator Austin and I have brought in to
increase the representation of Western Canada, particularly British Columbia and
Alberta. It is not three E; it is not equality of provinces, equal membership
for provinces, which is what you favour. Nevertheless, I think you could have
damned it with the same faint praise with which you damned Bill S-4 and said,
``Well, it is a step along the way, we believe in stages, so go ahead and
Senator Austin and I are trying something that has never been done before;
that is, we are initiating a constitutional amendment from the Senate. As you
know, any of the players can initiate a constitutional amendment: the Senate,
the House of Commons, any of the provinces. I wonder whether after the 21 years
— I think it was 1985 — that Alberta has been advocating a Triple-E Senate, why
you would not try to start the ball rolling, take some design of a Triple-E
Senate, have it passed in your legislature, send it to the other provinces and
to the Senate and the House of Commons, and see what happens. How is that for
Mr. Mar: Pretty good.
I am relatively new in these matters. I am a recovering lawyer, so my
background in matters of constitutional law has been restricted to my time
sitting in Professor Anne McLellan's constitutional law class in 1984. I have
tried my best to update myself as best I can in preparation for this hearing. I
do know that there has been a lot of ball tossing between the federal government
and the provincial government on what you suggest as to who may initiate this.
We believe that the Prime Minister is currently of the view that the federal
government wishes to start to make motions, which we would encourage. There has
been a lot of back and forth over the last 10 years between our province and,
previously, Prime Minister Chrétien's government, and later Prime Minister
Martin's government, but now we think that the current Prime Minister is on the
right track by at least bringing the issue forward. I had not contemplated
bringing it up independently, but now that it is on the table, we wish to
continue to press our position first stated in our select committee report of
Senator Murray: Fair enough.
The Chairman: Mr. Minister, we have benefited from your forthright
presentation and responses to our questions. Your testimony will be very helpful
in the work of this committee and later in the Senate when we introduce our
report and finally make a determination on Bill S-4 and the Murray-Austin
motion. With those words, I express thanks to you and to those who have
accompanied you today.
The committee adjourned.